As a condition of final site plan approval, or prior to the
recording of final subdivision plats, the Board may, for the purpose
of assuring the installation and maintenance of any on-tract improvements
or any other improvements deemed necessary to serve the public interest,
health, safety, and general welfare, require the following.
[Amended 5-14-2018 by Ord. No. 2018-17]
A.
No final application for development, whether for an entire tract
or a section thereof, shall be approved by the Board until the satisfactory
completion and performance of certain public improvements have been
certified to the Board by the Borough Engineer, unless the owner shall
have filed with the Borough a performance guarantee assuring the installation
of certain public improvements on or before an agreed date as hereinafter
provided.
B.
Only certain public improvements shall require a performance guarantee
prior to final application approval. These improvements include:
(1)
Streets.
(2)
Pavement.
(3)
Gutters.
(4)
Curbs.
(5)
Sidewalks.
(6)
Streetlighting.
(7)
Street trees.
(8)
Surveyor's monuments, as shown on the final map and required by the
Map Filing Law, N.J.S.A. 46:26B-1 through 46-26B-8.
(9)
Water mains.
(10)
Sanitary sewers.
(11)
Drainage structures.
(12)
Public improvements of open space.
(13)
Any grading necessitated by the preceding improvements.
C.
With the exception of privately owned perimeter buffer landscaping,
no privately owned improvements shall require a performance guarantee
as a prerequisite for obtaining final approval of an application for
development by the Board as required in Subsection A(1) above.
D.
A performance guarantee estimate shall be prepared by the applicant's
engineer and submitted to the Borough Engineer for review and approval,
setting forth all requirements for improvements, as fixed by the Board,
and their estimated cost. The estimate shall include an itemized list
appended to the performance guarantee posted by the obligor. The Borough
Council shall pass a resolution either approving or adjusting this
performance guarantee.
E.
Extensions of time. The time allowed for the installation of the
improvements for which the performance guarantee has been provided
may be, but need not be, extended by the Borough Council by resolution,
provided that the current cost of the installation of such improvements
first shall be redetermined by the Borough Engineer, and if such current
cost is found to be greater than the cost originally determined, the
applicant shall be required, as a condition of any such extension,
to increase the amount of its performance guarantee to an amount equal
to 120% of the cost of installation, as redetermined. In the event
that the redetermined cost shall be less than the cost as originally
determined, and in further event that the applicant's performance
guarantee exceeds 120% of such redetermined costs, the applicant shall
be entitled to a reduction of its performance guarantee to an amount
equal to 120% of such redetermined costs.
F.
Approval by Borough Attorney.
G.
Bonding and cash requirements.
(1)
Requirements of performance guarantee.
(a)
The performance guarantee shall be in an amount equal to 120%
of the cost of installation of certain public improvements, when secured
by a bond, or in an amount equal to 100% of the cost of the same,
when secured by cash or irrevocable letter of credit.
(b)
An itemized cost estimate, as approved by the Borough Engineer,
shall be appended to the posted performance guarantee.
(c)
The performance guarantee shall be made payable and deposited
to South River Borough and shall be in the form of cash, irrevocable
letter of credit, or certified check or a performance bond in which
the owner shall be principal, the bond to be provided by an acceptable
surety company licensed to do business in the State of New Jersey.
The Borough shall issue its receipt for such deposits and shall cause
the same to be deposited in the name of the Borough, to be retained
as security for completion of all requirements and to be returned
to the owner on completion of all required work, or, in the event
of default on the part of the owner, to be used by the Borough to
pay the cost and expense of obtaining completion of all requirements.
(d)
Ten percent of the amount of the approved performance guarantee
estimate shall be deposited by the owner with the Borough in the form
of cash or irrevocable letter of credit. The remaining 90% may be
in cash, irrevocable letter or surety bond. In the event of default,
the ten-percent fund herein mentioned shall be first applied to the
completion of the requirements, and the remaining cash, irrevocable
letter of credit, or surety bond shall thereafter be resorted to,
if necessary, for the completion of the requirements. The cash, irrevocable
letter of credit, or surety bond shall recite the foregoing provisions.
[Amended 5-14-2018 by Ord. No. 2018-17]
A.
On all applications for development in which a performance guarantee is required prior to obtaining final approval, the Borough may also, at the discretion of the Board, be required to furnish a safety and stabilization guarantee, either as a line item of the performance guarantee or as a separate and distinct guarantee. A safety and stabilization guarantee shall be available to the Borough solely for the purpose of returning property that has been disturbed to a safe and stable condition or to otherwise implement measures to protect the public from access to an unsafe or unstable condition in certain circumstances prescribed in Subsection B(3).
B.
Requirements of safety and stabilization guarantee.
(1)
The safety and stabilization guarantee shall be in an amount calculated
as follows:
(2)
The safety and stabilization guarantee shall be made payable and
deposited to the Borough of South River either as part of the performance
guarantee or separate and apart from it. It shall be in the form of
cash, irrevocable letter of credit, or certified check or a performance
bond in which the owner shall be principal, the bond to be provided
by an acceptable surety company licensed to do business in the State
of New Jersey. The Borough shall issue its receipt for such deposits
and shall cause the same to be deposited in the name of the Borough,
to be retained as security in the case of abandonment or ceasing of
work and to be returned to the owner on completion of all required
work, or, in the event of default on the part of the owner, to be
used by the Borough to pay the cost and expense of obtaining completion
of all requirements.
(3)
The safety and stabilization guarantee shall only be used in cases
in which all of the following has occurred:
(a)
A project has commenced and the site has been disturbed;
(b)
Thereafter, all work on the development has ceased for a period
of at least 60 consecutive days following such commencement for reasons
other than force majeure;
(c)
After written notice by the Borough to the developer, by certified
mail, of the Borough's intent to claim payment under the guarantee,
work has not recommenced within 30 days.
[Amended 5-14-2018 by Ord. No. 2018-17]
A.
Costs.
(1)
Generally. All relevant site improvements and utility installations
for both site plans and subdivisions shall be inspected during the
time of their installation under the supervision of the Borough Engineer
to ensure satisfactory completion. The cost of said inspection shall
be the responsibility of the owner, who shall submit an escrow to
the Borough.
(2)
Thresholds.
(a)
Where a development's inspection fees are less than $10,000,
fees may, at the option of the developer, be paid in two installments.
The initial amount deposited in escrow by a developer shall be 50%
of the inspection fees. When the balance on deposit drops to 10% of
the inspection fees because the amount deposited by the developer
has been reduced by the amount paid to the Borough Engineer for inspections,
the developer shall deposit the remaining 50% of the inspection fees.
(b)
For those developments for which the inspection fees total $10,000
or greater, fees may, at the option of the developer, be paid in four
installments. The initial amount deposited in escrow by a developer
shall be 25% of the inspection fees. When the balance on deposit drops
to 10% of the inspection fees because the amount deposited by the
developer has been reduced by the amount paid to the Borough Engineer
for inspections, the developer shall make additional deposits of 25%
of the inspection fees.
(3)
Fee schedule. The following fee schedule shall be charged related
to inspections:
(a)
Borough employees. Inspection time will be rounded to the next
half hour for billing purposes. Inspections for Saturdays and holidays
must be preapproved by the Assistant Borough Engineer prior to scheduling.
(4)
Testing laboratory. Assessed at the cost to the Borough.
(5)
Outside consulting services. When the Borough deems it necessary
to retain outside professional services, the developer shall reimburse
the Borough for all reasonable professional consulting fees.
(6)
Insufficient fees. If the Borough determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsection A(3)(a) of this section, is insufficient to cover the cost of additional required inspections, the Borough may require the developer to deposit additional funds in escrow, provided that the Borough delivers to the developer a written inspection escrow deposit request, signed by the Borough Engineer, which informs the developer of the need for additional inspections, details the items or undertakings that require inspection, estimates the time required for those inspections, and estimates the cost of performing those inspections.
(7)
Excess fees. No refund of inspection deposits shall be made.
B.
Notice. The Borough Engineer's office shall be notified prior to
each of the following phases of work so that he or a qualified representative
may inspect the work.
(1)
Road subgrade.
(2)
Curb and gutter forms.
(3)
Curbs and gutters.
(4)
Road pavings.
(5)
Sidewalk forms.
(6)
Sidewalks.
(7)
Drainage pipes and other drainage construction.
(8)
Street name signs.
(9)
Monuments.
(10)
Sanitary sewers.
(11)
Detention and/or retention basins.
(12)
Topsoil, seeding and planting.
(13)
Underground utilities.
C.
Whenever site plan approval has been granted as required under the
provisions of this Part 1, the Borough Engineer shall conduct regular
inspections of the subject premises during the course of construction
and/or improvement to ascertain that there has been full compliance
with the terms and provisions of the site plan approval granted by
the Planning Board or Zoning Board of Adjustment.
D.
Observation of installation of improvements. All improvements (except
electric, gas and water main extensions to a privately owned utility
company) shall be installed under the observation and to the satisfaction
of the Borough Engineer, the cost thereof to be borne by the developer.
In order to cover the cost of inspection, an amount equal to 5% of
all improvements, as estimated in advance by the Borough Engineer
and approved by the Board, shall be deposited in the form of cash
or certified check with the Borough Clerk before commencement of any
construction. Charges for observation services shall be in accordance
with prevailing agreements between the Borough and the personnel involved.
Payments for observation charges to the Borough Engineer or his agents
shall be paid out of this fund upon presentation of bills by the Borough
Engineer to the Borough Clerk for such observation. If said deposit
shall be insufficient, any additional reasonable observation cost
as approved by the governing body shall be paid by the developer before
the improvement is accepted. Any balance from the deposit, after observation
costs have been deducted therefrom, shall be refunded to the developer.
E.
Notification of Borough Engineer. No construction work relative to
the installation of required improvements shall commence without the
Borough Engineer or other responsible officer being notified at least
48 hours before the commencement of said work. No street underground
installations shall be covered until inspected and approved by the
Engineer or other authorized official.
F.
Not more than 48 business hours after an engineer's inspection pursuant
to the provisions of this Part 1, the Borough Engineer shall provide
the applicant with written notice of any deficiency observed at the
time of inspection.
G.
Suspension of work. Failure of the developer, his contractor or agent
to conform to the specifications for installing improvements indicated
in this Part 1 or to conform to the preliminary plat plan as approved
by the Board will be just cause for the suspension of work being performed,
and no person, firm or corporation shall have the right to demand
or claim damages from the Borough of South River, its officers, agents
or servants by reason of such suspension. No underground installation
shall be covered until inspected and approved by the Engineer.
H.
Prior to the issuance of a certificate of occupancy, an applicant
shall submit to the Borough Engineer five sets of as-built drawings
(including one Mylar) of the project for which site plan approval
was granted, signed and sealed by a licensed engineer.
I.
The following details should be provided on as-built drawings required
for certificates of occupancy:
(1)
The location of the dwelling and all physical features such as driveway,
walks, decks, accessory structures and fences.
(2)
The location of all utility services.
(3)
The location of any storm sewer facilities on the property, including
basement drainage discharge systems.
(4)
The location of any utility and/or conservation easements.
(5)
The site grading, including the first floor, garage floor and basement
floor elevations.
[Amended 5-14-2018 by Ord. No. 2018-17]
A.
Paving and concrete generally. In no case shall any paving or concrete
work be done without permission from the Borough Engineer. At least
two working days' notice shall be given to the Borough Engineer prior
to any construction so that he or a qualified representative may be
present at the time the work is to be done. Samples of concrete or
any other materials used in the course of construction may be taken
and tested in an approved testing laboratory, with the cost of said
lab analysis to be paid by the developer or road contractor, independent
of the inspection deposits.
B.
Streets. Streets shall not be paved with a wearing course until all
heavy construction is completed.
C.
Shade trees. Shade trees shall not be planted until all grading and
earthmoving is completed.
D.
Seeding of grass and surveyor's monuments. The seeding of grass and
the placing of surveyor's monuments shall be among the last operations.
E.
Violations. Any improvement installed contrary to the plan or plat approval by the Borough shall constitute just cause to void the Board approval. Any improvement installed without notice for inspection pursuant to § 295-46B hereinabove shall constitute just cause for:
(1)
Removal of the uninspected improvements;
(2)
The payment by the developer of any costs of material testing;
(3)
The restoration by the developer of any improvements disturbed during
any material testing; and/or
(4)
The issuance of a stop-work order by the Borough Engineer pending
the resolution of any dispute.
F.
Borough's rights reserved. Inspection by the Borough of the installation
of improvements and utilities shall not operate to subject the Borough
to liability for claims, suits, or liability of any kind that may
at any time arise because of defects or negligence during construction
or at any time thereafter; it being recognized that the responsibility
to maintain safe conditions at all times during construction and to
provide proper utilities and improvements is upon the owner and his
contractor, if any.
G.
Substantial completion. Upon the completion or substantial completion
of all required appurtenant utility improvements and the connection
of the same to the public system, the obligor may notify the Borough
Council, in writing, by certified mail in care of the Borough Clerk,
of the completion or substantial completion of the improvements and
shall simultaneously send a certified copy thereof to the Borough
Engineer. Within 10 working days of receipt of the notice, the Borough
Engineer shall inspect all the improvements of which such notice has
been given and file a detailed report, in writing, with the Borough
Council, indicating either approval, partial approval, or rejection
of such improvements with a statement of the reasons for any rejection.
The costs of the improvements as approved or rejected shall be set
forth.
H.
Release.
(1)
Generally. The Borough Council shall approve, partially approve,
or reject the improvements on the basis of the report from the Borough
Engineer, and shall notify the obligor, in writing, by certified mail,
of the Engineer's report and the action of the Borough Council not
later than 45 days after the receipt of the notice of the obligor
of the completion or substantial completion of the improvements.
(a)
Approval. Upon approval by the Borough Council with regard to
the public improvements for which a performance guarantee is being
held, said performance guarantee shall be released.
(b)
Partial approval. Upon partial approval by the Borough Council
with regard to the public improvements for which a performance bond
is being held, the developer may seek a temporary certificate of occupancy.
As a condition of the issuance thereof, the developer shall furnish
a temporary certificate of occupancy guarantee in favor of the municipality
in an amount equal to 120% of the cost of installation of only those
improvement or items which remain to be completed or installed under
the terms of the temporary certificate of occupancy and which are
required to be installed or completed as a condition precedent to
the issuance of the permanent certificate of occupancy.
[1]
Upon issuance of a temporary certificate of occupancy guarantee,
the performance guarantee shall be released. At no time shall the
Borough hold more than one guarantee with respect to the same line
item.
[2]
The scope and amount of the temporary certificate of occupancy
guarantee shall be determined by the Municipal Engineer.
[3]
The temporary certificate of occupancy guarantee shall be released
by the Municipal Engineer upon the issuance of a permanent certificate
of occupancy with regard to the development, unit, lot, building,
or phase to which the temporary certificate of occupancy relates.
(2)
Failure of the Borough Council to send or provide such notification
to the obligor within the 45 days shall be deemed to constitute approval
of the improvements, and the obligor and the surety, if any, shall
be released from all liability pursuant to the performance guarantee
for such improvements.
(3)
In the event that the Planning or Zoning Board of Adjustment, as
the case may be, is required by statute to act upon the application
prior to receipt of the Borough Council's determination as to construction
of off-tract improvements, it shall request the applicant to consent
to an extension of time within which to act, of sufficient duration
to enable the Borough Council to make the aforesaid determination.
In the event that said applicant is unwilling to consent to the requested
extension of time, the Planning Board or Zoning Board of Adjustment,
as the case may be, shall, in its discretion, either itself determine
the procedure to be followed in constructing the aforesaid improvements
or shall condition its approval upon the subsequent determination
of the Borough Council.
I.
Conditions and acceptance of improvements. The approval of any application for development by the Borough shall in no way be construed as acceptance of any public improvement subject to a performance guarantee, privately owned perimeter buffer landscaping, stormwater management basins, inflow and water quality structures within the basins, and the outflow pipes and structures of the stormwater management system. Such approval shall not obligate the Borough in any way to exercise jurisdiction over such items. Any road not meeting design standards specified within Article VIII of this chapter shall not be accepted by the Borough as a public street. No improvement provided herein shall be accepted by the governing body unless and until all of the following conditions have been met:
(1)
The Borough Engineer shall have certified, in writing, that the improvements
are completed and that they comply with the requirements of this chapter.
(2)
The final application for development shall have been approved by
the Board.
(3)
The owner shall have filed with the Borough Council a maintenance
guarantee in an amount equal to and not more than 15% of the cost
of installing the improvements. The maintenance guarantee shall run
for a period of two years. The maintenance guarantee shall comply
with the following procedures and requirements:
(a)
A maintenance guarantee estimate shall be prepared by the Borough
Engineer based on the estimate used for the performance guarantee.
The estimate shall include an itemized list appended to the performance
guarantee posted by the obligor. The Borough Council shall pass a
resolution either approving or adjusting this maintenance guarantee.
(b)
The maintenance guarantee shall be made payable and deposited
to South River Borough and shall be in the form of cash, irrevocable
letter of credit, or certified check or a performance bond in which
the owner shall be principal, the bond to be provided by an acceptable
surety company licensed to do business in the State of New Jersey.
The Borough shall issue its receipt for such deposits and shall cause
the same to be deposited in the name of the Borough, to be retained
as security for any maintenance needed to be performed on the above-listed
improvements and to be returned to the owner at the expiration of
the two-year period.
(c)
Ten percent of the amount of the approved maintenance guarantee
estimate shall be deposited by the owner with the Borough in the form
of cash or irrevocable letter of credit. The remaining 90% may be
in cash, irrevocable letter or surety bond. In the event of default,
the ten-percent fund herein mentioned shall be first applied to the
completion of the requirements, and the remaining cash, irrevocable
letter of credit, or surety bond shall thereafter be resorted to,
if necessary, for the completion of the requirements. The cash, irrevocable
letter of credit, or surety bond shall recite the foregoing provisions.
(d)
A maintenance guarantee may be waived by the Borough Council
only if the Borough Engineer has certified that the improvements have
been in continuous use for not less than two years from the date the
Borough Engineer certified completion of such improvements and that
during this period the owner has maintained the improvements in a
satisfactory manner.
(e)
An as-built plan and profiles of all utilities and roads (three
black-and-white prints, plus a Mylar copy to be sent to the Borough
Engineer), with certification signed and sealed by a New Jersey licensed
professional engineer as to the actual construction as approved by
the Borough Engineer, shall be provided.
(f)
Upon the passage of the period for the maintenance guarantee,
and upon certification of the Borough Engineer that said works have
been satisfactorily maintained and are in compliance with all specifications
set forth, the balance of said maintenance guarantee, if any, shall
be returned, without interest, to the developer or road contractor.
J.
In the event that final approval is by stages or sections of development,
the provisions of this article shall be applied by stages or sections.
K.
Nothing herein, however, shall be construed to limit the right of
the obligor to contest by legal proceedings any determination of the
governing body or the Borough Engineer.
L.
The municipality shall make all of the payments to professionals
for services rendered to the municipality for review of applications
for development, review and preparation of documents, inspection of
improvements or other purposes. If the municipality requires of the
developer a deposit toward the anticipated municipal expenses for
these professional services, the deposit shall be placed in an escrow
account pursuant to N.J.S.A. 40:55D-53.1. The amount of the deposit
required shall be reasonable in regard to the scale and complexity
of the development. All payments charged to the deposit shall be pursuant
to vouchers from the professionals stating the hours spent, the hourly
rate, and the expenses incurred. The municipality shall render a written
final accounting to the developer on the uses to which the deposit
was put. Thereafter, the municipality shall, upon written request,
provide copies of the vouchers to the developer. If the salary, staff
support and overhead for a professional are provided by the municipality,
the charge to the deposit shall not exceed 200% of the sum of the
products resulting from multiplying the hourly base salary of each
of the professionals by the number of hours spent by the respective
professional on review of the application for development or the developer's
improvements, as the case may be. For other professionals, the charge
to the deposit shall be at the same rate as all other work of the
same nature by the professional for the municipality.
