[Amended 6-25-2020 by Ord. No. 2020-11]
A.
Before execution of the final subdivision plat, as a condition of
final site plan approval, or as a condition to the issuance of a zoning
permit pursuant to N.J.S.A. 40:55D-65, a developer shall have installed
all improvements required by the Planning Board or Board of Adjustment
as may be the case, except that the Borough Council may require and
shall accept in accordance with the standards adopted herein, pursuant
to N.J.S.A. 40:5D-53, for the purpose of assuring the installation
and maintenance of on-tract improvements, the following:
(1)
The furnishing of a performance guarantee in favor of the Borough
in an amount not to exceed 120% of the cost of installation for all
improvements not installed prior to final approval, which cost shall
be determined by the Borough Engineer according to the method of calculation
set forth in N.J.S.A. 40:55D-53.4 for the following improvements as
shown on the approved plans or plat: streets, pavement, gutters, curbs,
sidewalks, street lighting, street trees, surveyor's monuments,
as shown on the final map and required by the Map Filing Law, P.L.
1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.; repealed by Section 2 of
P.L. 2011, c. 217) or N.J.S.A. 46:26B-8 through N.J.S.A. 46:26B-8,
water mains, sanitary sewers, community septic systems, drainage structures,
public improvements of open space, and any grading necessitated by
the preceding improvements.
(2)
A successor developer must furnish a replacement performance guarantee,
as a condition to the approval of a permit update under the State
Uniform Construction Code, for the purpose of updating the name and
address of the owner of property on a construction permit.
(3)
A minimum of 10% of the total guarantee required shall be in the
form of cash or a certified check made payable to the Borough of Wallington.
The balance may be in the form of cash, a certified check, a letter
of credit, a performance bond from a bonding company included in a
list of acceptable bonding companies maintained by the Borough Administrator,
or any combination of the foregoing. The Borough Engineer shall prepare
an itemized cost estimate of the improvements covered by the performance
guarantee, which itemized cost estimates shall be appended to each
performance guarantee posted by the obligor.
(4)
Any cash or certified check furnished as a portion of a performance
guarantee in favor of the Borough shall be held in escrow by the Borough
and deposited or invested in the manner prescribed in N.J.S.A. 40:55D-53.1
for escrow interest, the principal amount to be refunded to the obligor
upon release from liability or reduction in the amount of the performance
guarantee.
(5)
A performance guarantee shall include, within an approved phase or
section of a development privately owned perimeter buffer landscaping,
as required by Borough ordinance or imposed as a condition of approval.
(6)
At the developer's option, a separate performance guarantee
may be posted for the privately owned perimeter buffer landscaping.
(7)
In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a "temporary certificate of occupancy guarantee," in favor of the Borough in an amount equal to 120% of the cost of installation of only those improvements 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 for the development, unit, lot, building or phase of development and which are not covered by an existing performance guarantee. Upon posting of a "temporary certificate of occupancy guarantee," all sums remaining under a performance guarantee, required pursuant to § 330-69A(1), which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. The scope and amount of the temporary certificate of occupancy guarantee shall be determined by the Zoning Officer, Borough Engineer, or other municipal official designated by ordinance. At no time may the Borough hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy guarantee shall be released by the Zoning Officer, Borough Engineer, or other municipal official designated by ordinance upon the issuance of a permanent certificate of occupancy with regard to the development, unit, lot, building, or phase as to which the temporary certificate of occupancy relates.
(8)
A developer shall furnish to the Borough a safety and stabilization
guarantee, in favor of the Borough. At the developer's option,
a safety and stabilization guarantee may be furnished either as a
separate guarantee or as a line item of the performance 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 otherwise implementing measures
to protect the public from access to an unsafe or unstable condition,
only in the circumstance that:
(a)
Site disturbance has commenced and, 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;
and
(b)
Work has not recommenced within 30 days following the provision
of written notice by the Borough to the developer of the Borough's
intent to claim payment under the guarantee. The Borough shall not
provide notice of its intent to claim payment under a safety and stabilization
guarantee until a period of at least 60 days has elapsed during which
all work on the development has ceased for reasons other than force
majeure. The Borough shall provide written notice to a developer by
certified mail or other form of delivery providing evidence of receipt.
(c)
The amount of a safety and stabilization guarantee for a development
with bonded improvements in an amount not exceeding $100,000 shall
be $5,000.
(d)
The amount of a safety and stabilization guarantee for a development
with bonded improvements exceeding $100,000 shall be calculated as
a percentage of the bonded improvement costs of the development or
phase of development as follows:
[1]
Five thousand dollars for the first $100,000 of bonded improvement
costs, plus 2 1/2% of bonded improvement costs in excess of $100,000
up to $1,000,000, plus 1% of bonded improvement costs in excess of
$1,000,000.
[2]
The Borough shall release a separate safety and stabilization
guarantee to a developer upon the developer's furnishing of a
performance guarantee which includes a line item for safety and stabilization
in the amount required under this subsection.
[3]
The Borough shall release a safety and stabilization guarantee
upon the Borough Engineer's determination that the development
of the project site has reached a point that the improvements installed
are adequate to avoid any potential threat to public safety.
B.
The performance guarantee shall be approved by the Borough Attorney
as to form, sufficiency and execution. The performance guarantee shall
list all required improvements in detail, setting forth the amount,
quantity and specification of all items. It shall be the responsibility
of the Borough Engineer to monitor progress of installation of improvements
and the sufficiency of the performance guarantee as development progresses.
In the event the Borough Engineer determines, at any time, that guarantees
are insufficient to cover the completion of improvements, he/she may,
with the concurrence of the Borough Attorney, adjust the limits of
the guarantees. Any determination by the Borough Engineer may be appealed
to the Borough Council within 10 days of such determination. Failure
of the developer to comply with the decision of the Borough Engineer
or to appeal said decision shall require immediate cessation of construction
by issuance of a stop-work order by the Borough Engineer.
C.
No performance guarantee shall be considered filed or accepted for
filing with the Borough Clerk unless and until the following conditions
are met:
(1)
Final construction plans have been filed with the Planning Board
and an estimate of the cost of construction has been filed with the
Borough Council.
(2)
The Borough Engineer shall have certified, in writing, to the Borough
Council that the amount thereof is sufficient to assure the completion
of the improvements.
(3)
The Borough Attorney shall have approved the sufficiency of the form
and execution of said performance guarantee.
(4)
The Borough Council shall have approved the qualifications of the
surety and stipulated the duration of said guarantee. If the applicant
elects to post performance guarantees pursuant to this subsection,
the final plat shall contain the following statement in bold letters.
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NOTICE
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CONSTRUCTION OF ALL REQUIRED IMPROVEMENTS IS TO BE COMPLETED
WITHIN THE TIME FRAME PROVIDED FOR IN THE DEVELOPER'S AGREEMENT
UNLESS AN EXTENSION OF TIME HAS BEEN OBTAINED FROM THE APPROPRIATE
MUNICIPAL AGENCY. THE MUNICIPALITY HAS NO OBLIGATION TO CONSTRUCT
ANY IMPROVEMENTS NOT COMMENCED, NOR TO COMPLETE ANY IMPROVEMENTS COMMENCED
BY DEVELOPER EXCEPT TO THE EXTENT OF FUNDS RECEIVED FROM THE PERFORMANCE
GUARANTEES POSTED BY DEVELOPER WITH THE MUNICIPALITY.
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D.
Such performance guarantee shall run for a period to be determined by the Borough Council in conjunction with the developer's agreement (See § 330-70). The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of installation as determined at the time of the passage of the resolution.
E.
If the required improvements are not completed or corrected in accordance
with the performance guarantee, the obligor and surety, if any, shall
be liable thereon to the Borough for the reasonable cost of the improvements
not completed or corrected and the Borough may either prior to or
after the receipt of the proceeds thereof complete such improvements.
Such completion or correction of improvements shall be subject to
the public bidding requirements of the Local Public Contracts Law,
P.L. 1971, c. 198 (N.J.S.A. 40A:11-1 et seq.).
F.
Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the Borough Council, in writing, by certified mail, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactorily completed improvements. A copy of the request shall be sent to the Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Borough Engineer shall inspect all improvements covered by the request and shall file a written list and report with the Borough Council, with a copy to the obligor, not later than 45 days after the receipt of the obligor's request. The list prepared by the Borough Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory, or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report shall also identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section.
G.
The Borough Council, by resolution, shall either approve the improvements
determined to be complete and satisfactory by the Borough Engineer,
or reject any or all of these improvements, and shall approve and
authorize the amount of reduction to be made in the performance guarantee
relating to the improvements accepted, in accordance with the itemized
cost estimate prepared by the Borough Engineer. This resolution shall
be adopted not later than 45 days after receipt of the list and report
prepared by the Borough Engineer. Upon adoption of the resolution
by the Borough Council, the obligor shall be released from all liability
pursuant to its performance guarantee, with respect to those approved
improvements, except for that portion adequately sufficient to secure
completion or correction of the improvements not yet approved, provided
that 30% of the amount of the performance guarantee posted may be
retained to ensure completion of all improvements. In the event that
the obligor has made a cash deposit with the Borough or approving
authority as part of the performance guarantee, then any partial reduction
granted in the performance guarantee pursuant to this subsection shall
be applied to the cash deposit in the same proportion as the original
cash deposit bears to the full amount of the performance guarantee.
H.
If any portion of the required improvements is rejected, the approving
authority may require the obligor to complete or correct such improvements
and, upon completion or correction, the same procedure of notification,
as set forth in this section shall be followed.
I.
Nothing herein, however, shall be construed to limit the right of
the obligor to contest by legal proceedings any determination or lack
of a determination of the Borough Council or the Borough Engineer.
J.
All the improvements shall be subject to inspection and approval
by the Borough Engineer who shall be notified by the developer at
least 48 hours prior to the start of the construction. No underground
installations shall be covered until inspected and approved. The obligor
shall reimburse the Borough for all reasonable inspection fees paid
to the Borough Engineer for the foregoing inspection of improvements.
The Borough Engineer shall not perform any inspection if sufficient
funds to pay for those inspections are not on deposit.
K.
Time schedule and phasing/sectioning plan.
(1)
In the event that final approval is by stages or sections of development
pursuant to N.J.S.A. 40:55D-38(a), the Planning Board or Board of
Adjustment, as the case may be, shall establish a time schedule or
phasing/sectioning plan for the installation of improvements and a
level of monetary guarantees coordinated with that schedule or plan
in order to protect the Borough. Failure of the developer to meet
any time limit or phasing/sectioning deadline shall necessitate review
by the approving authority. Timing or phasing/sectioning of improvements
shall be established with consideration of the following factors:
(a)
The estimated amount of time needed to install all improvements;
(b)
Physical characteristics of the site;
(c)
Current market and economic conditions;
(d)
The estimated cost of improvements and the nature of the performance
guarantees; and
(e)
Representations of the developer relative to his/her ability
to meet the deadlines to be established.
L.
To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guarantee required pursuant to Subsection A of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Borough Engineer.
M.
Building permits in a subdivision or site plan or approved subsection
thereof, except for model buildings in the first subsection, will
be issued only when all improvements, with the exception of the following,
have been installed to serve all lots and structures within the subdivision
or site plan or approved subsection thereof and approved by the Borough
Engineer:
N.
Permits for model buildings in the front subsection or 10% of the
total number to be built in said subsection, whichever is less, but
not to exceed six, may be issued on commencement of construction of
improvements.
O.
Installation of sidewalks, where required on a lot, shall be completed
prior to the issuance of a certificate of occupancy for that lot.
P.
A site plan bond shall be posted prior to earth disturbance.
Q.
Notwithstanding any provision of this chapter to the contrary, upon
completion of all improvements but prior to acceptance by the Borough
Council of such improvements and prior to the release of any performance
guarantee which may have been posted, deeds must be received, free
and clear of all mortgages and encumbrances, for all fee and other
property interests and improvements to be conveyed to the Borough.
R.
The applicant shall provide for a maintenance guarantee to be posted
with the Borough Council for a period not to exceed two years after
final acceptance of the improvements, in an amount not to exceed 15%
of the cost of the improvement, which cost shall be determined by
the Borough Engineer according to the method of calculation set forth
in N.J.S.A. 40:55D-53.4. In the event that other governmental agencies
or public utilities automatically will own the utilities to be installed
or the improvements are covered by performance or maintenance guarantee
to another governmental agency, no performance or maintenance guarantee,
as the case may be, shall be required by the municipality for such
utilities or improvements. The Borough Engineer and the Borough Council
shall review the maintenance bond, and it shall be reviewed by the
Borough Attorney as to form, sufficiency and execution and approved
by the governing body. The maintenance bond shall be expressly conditioned
upon the maintenance by the subdivider of all such improvements for
a period of two years and particularly shall guarantee the remedying
of any defects in such improvements which occur during said period.
The maintenance guarantee shall further guarantee the replacement
of any shade trees found to be unhealthy within two years after acceptance.
A.
Within 90 days of the adoption of a resolution granting final subdivision
or final site plan approval and prior to the execution of the final
subdivision plat or signing of a final site plan by the Borough, there
shall be executed and delivered to the Borough Attorney an agreement
between the developer and the Borough incorporating all the terms
and conditions of final approval. The agreement may be drawn by the
Borough Planning Board Attorney, Board of Adjustment Attorney or Borough
Attorney and shall be executed by the owner and developer of the proposed
development.
B.
The agreement must contain the following provision: "It is hereby
understood and agreed that in the event the principal shall default
in the performance of its obligation under this agreement, then the
Borough shall perform said principal's obligation at the option
of the Borough Council."
C.
Implicit in every preliminary approval and part of each such agreement
in connection with final approval shall be the agreement of the developer
to:
(1)
Procure all necessary easements of any nature whatsoever.
(2)
Make such revisions in the drainage plan as may be reasonably required
before or during construction by the Borough Engineer. All drainage
problems shall be resolved to the satisfaction of the Borough Engineer
prior to the issuance of the final certificate of occupancy in the
subdivision or site plan.
(3)
Construct all improvements as approved by the appropriate land use
board.
(4)
Make changes to the approval and/or plan in the interest of public
health and safety.
D.
In the event that all of the improvements have not been installed
within the time period set forth in the developer's agreement,
the developer may request, in writing, to the Borough Council, a one-year
extension of the time in which to complete all improvements. No more
than two such extensions will be considered unless otherwise extended
by the Borough Council.
A.
Construction or contribution required. Pursuant to the powers established
in N.J.S.A. 40:55D-39 and N.J.S.A. 40:55D-42, construction of or contributions
for off-tract water, sewer, drainage and street improvements may be
required in accordance with the following criteria:
(1)
Improvements to be constructed at the sole expense of the applicant.
In cases where reasonable and necessary need for an off-tract improvement
or improvements is necessitated or required by the proposed development
application, and where no other property owners receive a special
benefit thereby, the Planning Board may require the applicant, as
a condition of subdivision or site plan approval, at the applicant's
sole expense, to provide for and construct such improvements as if
such were on-tract improvements in the manner provided hereafter and
as otherwise provided by law.
(2)
Contributions by developer toward required off-tract improvements:
(a)
In cases where the need for any off-tract improvement is necessitated by the proposed development application, and where the Planning Board determines that properties outside the development will also be benefited by the improvements, the Planning Board shall utilize the criteria set forth in § 330-71C below in determining the developer's proportionate share of such improvements. In addition, the Board shall be guided by the rules and regulations specified in this chapter and the Master Plan. The Board may also be guided by counsel from the Board Attorney, Engineer, Planning Consultant and other qualified experts and municipal officials relative to the subject matter.
(b)
In the event that the Board determines that one or more improvements
constitute an off-tract improvement the Board shall notify the Borough
Council of the same specifying the Borough's recommendation relative
to the estimated cost of same, the applicant's prorated share
of the cost, and possible methods or means to implement same, including,
but not limited to, performance and maintenance guarantees, case contributions,
development agreements and other forms of surety.
(c)
The Board shall not grant final approval on the subdivision
or site plan until all aspects of such conditions have been mutually
agreed upon by both the applicant and the Borough Council and a written
resolution to that effect by the Borough Council has been transmitted
to the Board.
B.
Methods of implementation.
(1)
Performance and maintenance guarantees. Where a performance or maintenance
guarantee or other surety is required in connection with an off-tract
improvement, the applicant shall be required to follow the same procedures
and requirements as specified in this chapter for other improvements.
(2)
Development agreement. Where a development agreement is required
governing off-tract improvements or other conditions as may be required
by this chapter or by the Board, said agreement shall be approved
as to form, sufficiency and execution by the Board Attorney and Borough
Attorney. Said agreement shall specify the amount of cash contributions,
if any, the method of payment, the relative timing of such payment,
and the obligation or obligations to be undertaken by the Borough
of Wallington.
(3)
Cash contributions, when not required. Cash contributions for off-tract
improvements shall not be required under the following conditions:
(a)
Where another county or state agency has jurisdiction over the
subject improvement and requires cash contribution, guarantee or other
surety of the applicant in lieu of such conditions imposed by the
Borough of Wallington;
(b)
Where a benefit assessment or other similar tax levy is imposed
upon the applicant for the off-site improvement provided; or
(c)
Where the applicant, where legally permissible, can undertake
the improvements in lieu of the municipality, subject to standards
and other conditions as may be imposed by the Borough of Wallington.
(4)
Cash contributions, method of payment. Where a cash contribution
is required by this chapter said contribution shall be deposited with
the Borough Chief Financial Officer with a copy of the applicant's
transmittal letter forwarded to the Borough Council, the Borough Engineer
and the Board. Any and all monies received by the Chief Financial
Officer shall be deposited in an escrow account for the purpose of
undertaking the improvements specified. Where such improvements are
not undertaken, or initiated for a period of 10 years from the posting
of the funds, the funds may be retained by the Borough and may be
used for general municipal purposes, but in such event, neither the
applicant nor any of his heirs, executors, administrators, or grantors
shall be liable to the Borough for any assessment for the purpose
of installing any of the improvements for which said cash contribution
was made.
C.
Pro rata formula for determining applicant's share of off-tract
improvements. Where an off-tract improvement is required, the following
criteria shall be utilized in determining the proportionate share
of such improvement to the applicant:
(1)
Street widening, alignment, corrections, channelization of intersections,
construction of barriers, new or improved traffic signalization, signs,
curbs, sidewalks, trees, utility improvements not covered elsewhere
and the construction of new streets and other similar street or traffic
improvements. The applicant's proportionate share shall be in
the ratio of the estimated peak hour traffic capacity of the present
facility, and the estimated peak hour traffic generated by the proposal
development. The ratio thus calculated shall be increased by 10% for
contingencies.
(2)
Water distribution facilities, including the installation of new
water mains, the extension of existing water mains, the relocation
of such facilities and the installation of other appurtenances associated
therewith. The applicant's proportionate cost shall be in the
ratio of the estimated daily use of water from the property or properties
in gallons to the sum of the deficiency in gallons per day for the
existing system or subsystem and the estimated daily use of water
for the proposed development. The ratio thus calculated shall be increased
by 10% for contingencies.
(3)
Sanitary sewage distribution facilities, including the installation,
relocation or replacement of collector and interceptor sewers and
the installation, relocation or replacement of other appurtenances
associated therewith. The applicant's proportionate cost shall
be in the ratio of the estimated daily flow in gallons to the sum
of the present deficient capacity for the existing system or subsystem
and the estimated daily flow from the proposed project or development.
In the case where the peak flow for the proposed development may occur
during the peak flow period for the existing system, the ratio shall
be the estimated peak flow rate from the proposed development in gallons
per minutes to the sum of the present peak flow deficiency in the
existing system or subsystem and the estimated peak flow rate from
the proposed development. The greater of the two ratios thus calculated
shall be increased by 10% for the contingencies and shall be the ratio
used to determine the cost to the applicant.
(4)
Stormwater and drainage improvements, including installation, relocation
or replacement of transmission lines, culverts, catch basins and the
installation, relocation or replacement of other appurtenances associated
therewith. The applicant's proportionate cost shall be in the
ratio of the estimated peak surfaces runoff as proposed to be delivered
into the existing system measured in cubic feet per second deficient
for the existing system and the estimated peak flow as proposed to
be delivered. The ratio thus calculated shall be increased by 10%
for contingencies. The applicant's engineer shall compute the
drainage basin area and the area of the development and the percent
of the total drainage basin area occupied by the development. Where
no drainage system exists, which will receive the flow of the surface
water from the applicant's development, the applicant shall furnish
all drainage rights-of-way deemed to be necessary by the Board.
(5)
General considerations. In calculating the proportionate or pro rata
amount of the cost of any required off-tract facilities which shall
be borne by the applicant, the Board shall also determine the pro
rata amount of cost to be borne by other owners of lands which will
be benefited by the proposed improvements.
A.
Before the Borough Construction Official Borough Engineer may issue
a construction permit, the Borough Engineer shall certify that he
or she has received and approved the detailed construction plans at
a scale of not less than one inch equals 50 feet, profiles, typical
sections, construction details and cross sections at maximum intervals
of 50 feet of all improvements to be installed or constructed. No
improvements shall be accepted by the Borough Council until the Borough
Engineer has received and approved drawings, showing the as-built
plans, details, grades and profiles of all improvements as finally
constructed. In addition to print copies of as-built plans, electronic
copies in a format acceptable to the Borough Engineer shall also be
required as part of the submittal of as-built plans.
B.
Prior to the release of the performance guarantee, as-built plans
on a reproducible media of all public improvements at a scale of not
less than one-inch equals 50 feet in plan and profile view shall be
submitted with a certification as to the actual construction, for
approval of the Borough Engineer.
C.
As individual, improved lots within a subdivision are sold, the subdivider
shall, prior to the time of closing, provide the purchaser with a
plot plan prepared by a licensed land surveyor of such lot, showing
the location of buildings and all improvements and the final contour
grading lines. One copy of the as-built plan, signed and dated by
the purchaser, shall be submitted to the Borough Engineer within 10
days prior to closing.
