[Amended 8-14-1986 by Ord. No. 23-86; 12-11-1997 by Ord. No.
34-97; 3-14-2019 by Ord. No. 6-19]
Before recording of final subdivision plats or deeds and/or
as a condition of final site plan approval and/or as a condition to
the issuance of a zoning permit, the applicant shall have installed
all required improvements; provided, however, that the Township agency
may require and shall accept performance and maintenance guarantees
for the purpose of assuring the installation and maintenance of certain
on tract improvements. Such performance and maintenance guarantees
shall be in accordance with the provisions of this article. In the
event that final approval is by stages or sections of development
as provided by this chapter, the provisions of this article shall
be applied by stage or section of development. The nature and scope
of required performance guarantees shall be as follows:
A.
Public improvements. Performance guarantees shall be provided for
those improvements required by an approval or developer's agreement,
ordinance, or regulation to be dedicated to a public entity, and that
have not yet been installed 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c. 141 (N.J.S.A. 46:23-9.9 et seq.; repealed by Section 2 of P.L.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-1 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.
B.
Perimeter buffers. Performance guarantees shall be provided, within
an approved phase or section of a development, privately owned perimeter
buffer landscaping, as required by this chapter or imposed as a condition
of approval.
C.
Safety and stabilization. A safety and stabilization guarantee, in
favor of the Township, shall be provided, when required by the approving
agency, 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.
D.
Temporary certificates of occupancy. 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."
Such guarantee shall cover 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. The scope and amount of the
temporary certificate of occupancy guarantee shall be determined by
the Township Engineer.
E.
Successor developer. In the event that a successor developer to the
original developer becomes responsible for completion of the required
improvements, the successor developer shall furnish a replacement
performance guarantee.
A.
Amount. The amount of any performance guarantees required by this
chapter shall be as follows:
(1)
Public improvements. The performance guarantee shall be in an amount
not to exceed 120% of the cost of installation of only those improvements
required by an approval or developer's agreement, ordinance, or regulation
to be dedicated to a public entity, and that have not yet been installed,
which cost shall be determined by the Township Engineer, according
to the method of calculation set forth in Section 15 of P.L. 1991,
c. 256 (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-1 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)
Perimeter buffers. At the developer's option, any required performance guarantee for privately owned perimeter buffer landscaping may be posted either as a separate guarantee or as a line item of the performance guarantee required by this article. The amount of the perimeter buffer landscaping guarantee shall be calculated in the same manner as for the performance guarantee in Subsection A above.
(3)
Safety and stabilization. At the developer's option, any required
safety and stabilization guarantee may be furnished either as a separate
guarantee or as a line item of the performance guarantee required
by this article. The amount of such guarantee shall be as follows:
(a)
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.
(b)
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:
(4)
Temporary certificates of occupancy. The amount of any temporary
certificate of occupancy guarantee shall be determined by the Township
Engineer.
B.
Appeal of disputed performance guarantee amounts. The developer may appeal the Township Engineer's estimate of the cost of improvements for purposes of furnishing a performance guarantee. Such appeal shall be made in accordance with the procedures set forth in § 166-48C(7).
C.
Form of guarantee. At least 10% of the performance guarantee shall
be in the form of cash or a certified check made payable to the Township
of Hanover. The balance of the performance guarantee shall be in the
form of any security issued by an institution authorized to issue
such securities in the State of New Jersey and which may be accepted
by the Township and approved by the Township Attorney, including but
not limited to surety bonds, cash and letters of credit; provided
that the Township shall only accept an irrevocable letter of credit
if it:
(1)
Constitutes an unconditional payment obligation of the issuer running
solely to the Township for an express initial period of time in the
amount determined pursuant to this chapter;
(2)
Is issued by a banking or savings institution authorized to do and
doing business in the State of New Jersey;
(3)
Is for a period of at least one year; and
(4)
Permits the Township to draw upon the letter of credit if the obligor
fails to furnish another letter of credit which complies with the
provisions of this section 30 days or more in advance of the expiration
date of the letter of credit or such longer period in advance thereof
as is stated in the letter of credit.
D.
Guarantee from successor developer. The Township Committee or an
approving authority may accept a performance guarantee in favor of
the Township from a successor developer as a replacement for a performance
guarantee that was previously furnished, pursuant to Section 41 of
P.L. 1975, c. 291 (N.J.S.A.40:55D-53), for the purpose of assuring
the installation of improvements. An approving authority shall notify
the governing body whenever it accepts a replacement performance guarantee.
Notice shall contain a copy of the written confirmation of the new
obligor's intent to furnish a replacement performance guarantee and
the Township Engineer's written verification of the sufficiency of
the amount of that replacement performance guarantee. Except as otherwise
provided by an ordinance requiring a successor developer to furnish
a replacement performance guarantee, the Township Committee or approving
authority shall not accept a replacement performance guarantee without
securing:
(1)
Written confirmation from the new obligor that the intent of the
new obligor is to furnish a replacement performance guarantee, relieving
the predecessor obligor and surety, if any, of any obligation to install
improvements; and
(2)
Written verification from the Township Engineer that the replacement
performance guarantee is of an amount sufficient to cover the cost
of the installation of improvements, but not to exceed 120% of the
cost of the installation, which verification shall be determined consistent
with section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53).
A.
Term of guarantee. The performance guarantee shall state the time
period within which all improvements are to be installed by the developer,
which shall be as set forth in the developer's agreement with the
Township.
B.
Extension of time allowed for completion of improvements. The time
allowed for installation of the improvements for which the performance
guarantee has been provided may be extended by the Township Committee
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
the installation at the time of the resolution. The cost of installation
shall be determined by the Township Engineer as provided herein for
the initial cost determination.
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 Township for the reasonable
cost of the improvements not completed or corrected. The Township
may, either prior to or after receipt of the proceeds thereof, complete
such improvements or use said funds to restore the property to a safe
condition so that the subject property in its unfinished development
state does not adversely affect the public safety or adversely impact
the environment. The following shall apply:
A.
Any completion of correction of improvements shall be subject to
the public bidding requirements of the Local Public Contracts Law.
B.
If a safety and stabilization guarantee was required pursuant to § 166-63C, the Township may utilize such guarantee only in the circumstance that:
(1)
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
(2)
Work has not recommenced within 30 days following the provision of
written notice by the Township to the developer of the Township's
intent to claim payment under the guarantee.
C.
The Township 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 Township shall provide written
notice to a developer by certified mail or other form of delivery
providing evidence of receipt.
Release of performance guarantees shall be in accordance with
the following procedures:
A.
Upon substantial completion of all required street improvements (except
for the top course) and appurtenant utility improvements and the connection
of the same to the public system, the obligor may request of the Township
Committee that the Township Engineer prepare a list of all uncompleted
or unsatisfactory completed improvements. The request to the Township
Committee shall be made in writing by certified mail addressed to
the Township Clerk, with a copy of the request to be sent to the Township
Engineer. The request shall indicate which improvements have been
completed and which improvements remain uncompleted in the judgment
of the obligor.
B.
Upon receiving the obligor's request, the Township Engineer shall
inspect all improvements covered by the obligor's request and shall
file a detailed list and report, in writing, with the Township Committee
and shall simultaneously send a copy thereof to the obligor not later
than 45 days after receipt of the obligor's request.
C.
The detailed list prepared by the Township Engineer shall be in accordance
with the itemized cost estimate prepared by the Township Engineer,
which estimate shall have been appended to the performance guarantee
as required herein. The list prepared by the Township 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.
D.
The report prepared by the Township Engineer shall 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.
The recommended reduction shall be in accordance with the itemized
cost estimate prepared by the Township Engineer, which cost estimate
shall have been appended to the performance guarantee as required
herein.
E.
The Township Committee, by resolution, shall either approve the improvements
determined to be complete and satisfactory by the Township Engineer
or reject any or all of these improvements. The cause for any rejection
shall be stated in the Committee's resolution. 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 required herein
shall be followed.
F.
For accepted improvements, the Township Committee shall approve and
authorize the amount of reduction to be made in the performance guarantee
relating to the improvements accepted. Any authorized reduction shall
be in accordance with the itemized cost estimate prepared by the Township
Engineer, which cost estimate shall have been appended to the performance
guarantee as required herein. The resolution shall be adopted not
later than 45 days after receipt of the list and report prepared by
the Township Engineer.
G.
Any partial reduction granted in the performance guarantee as provided
herein 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.
Upon posting of a temporary certificate of occupancy guarantee, all sums remaining under a performance guarantee required pursuant to § 166-63A which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought shall be released.
I.
At no time may the Township 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 Township Engineer
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.
J.
The Township 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 by § 166-64A(3).
K.
The Township shall release a safety and stabilization guarantee upon
the Township 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. The safety
and stabilization guarantee shall be reduced by the same percentage
as the performance guarantee is being reduced at the time of each
performance guarantee reduction.
L.
Within 30 days after receiving notice from the approving authority
of its acceptance of a replacement performance guarantee, the Township
Committee, by resolution, shall release the predecessor obligor from
liability pursuant to its performance guarantee.
M.
For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to § 166-63A, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the Township may retain 30% of the amount of the total performance guarantee and safety and stabilization guarantee to ensure completion and acceptability of bonded improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a temporary certificate of occupancy guarantee has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the Township below 30%.
Upon adoption of the resolution by the Township Committee approving
certain completed improvements, the obligor shall be released from
all liability pursuant to its performance guarantee, with respect
to those approved improvements. The following shall apply:
A.
To the extent that any of the improvements have been dedicated to the Township on the subdivision plat or site plan, the Township Committee shall be deemed, upon the release of any performance guarantee required pursuant to § 166-63A, 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 Township Engineer.
If the Township Engineer or Township Committee fails to act
on the request for release of a performance guarantee within the time
required herein, the obligor may apply to the court in the manner
provided below, provided that nothing herein shall be construed to
limit the right of the obligor to contest by legal proceedings any
determination of the Township Committee or the Township Engineer.
A.
If the Township Engineer fails to send or provide the list and report
as requested by the obligor as required herein within 45 days from
receipt of the request, the obligor may apply to the court in a summary
manner for an order compelling the Township Engineer to provide the
list and report within a stated time. The cost of applying to the
court, including reasonable attorney's fees, may be awarded to the
prevailing party.
B.
If the Township Committee fails to approve or reject the improvements
determined by the Township Engineer to be complete and satisfactory
or reduce the performance guarantee for the complete and satisfactory
improvements within 45 days from the receipt of the Township Engineer's
list and report, the obligor may apply to the court in a summary manner
for an order compelling, within a stated time, approval of the complete
and satisfactory improvements and approval of a reduction in the performance
guarantee for the approvable complete and satisfactory improvements
in accordance with the itemized cost estimate prepared by the Township
Engineer, which cost estimate shall have been appended to the performance
guarantee as required herein. The cost of applying to the court, including
reasonable attorney's fees, may be awarded to the prevailing party.
B.
Private stormwater management improvements. If required by the developer's
agreement with the Township, the developer shall post with the Township,
upon the inspection and issuance of final approval of the following
private site improvements by the Township Engineer, a maintenance
guarantee for the following private site improvements: stormwater
management basins, in-flow and water quality structures within the
basins, and the out-flow pipes and structures of the stormwater management
system.
C.
Except as specifically provided otherwise below, maintenance guarantees
shall be administered in the same manner as performance guarantees
as provided by this chapter.
(1)
Amount of maintenance guarantee. The maintenance guarantee shall
be in favor of the Township of Hanover in an amount equal to 15% of
the cost of such improvements. In the event of improvements for which
a performance guarantee was issued, the amount of the maintenance
guarantee shall equal 15% of the cost of those improvements for which
the guarantee(s) is(are) being released. The cost of said improvements
shall be determined by the Township Engineer in the same manner as
provided herein for performance guarantees.
(2)
Appeal of disputed maintenance guarantee amounts. The developer may appeal the Township Engineer's estimate of the cost of improvements for purposes of furnishing a maintenance guarantee. Such appeal shall be made in accordance with the procedures set forth in § 166-48C(7).
(3)
Form of guarantee. The maintenance guarantee shall be in the form
of any security issued by an institution authorized to issue such
securities in the State of New Jersey and which may be accepted by
the Township and approved by the Township Attorney, including but
not limited to surety bonds, cash and letters of credit, provided
that acceptance of irrevocable letters of credit shall be subject
to the same conditions as provided herein for performance guarantees.
(4)
Term of maintenance guarantee. The maintenance guarantee shall be
required to run for a period of two years, which shall be stated in
the guarantee, and shall automatically expire at the end of the established
term.
In the event that other governmental agencies or public utilities
automatically will own the utilities to be installed or the improvements
are covered by a performance or maintenance guarantee to another governmental
agency, no performance or maintenance guarantee, as the case may be,
shall be required by the Township for such utilities or improvements.
Prior to any construction and coincident with the furnishing
of the performance guarantee by the developer, the developer shall
enter into a developer's agreement with the Township Committee incorporating
all of the terms and conditions of approval as required by the Board.
In addition the developer's agreement may impose and describe the
terms of other matters that may or may not be specified in the approval,
including but not limited to the following:
A.
Procurement of necessary drainage, utility, access, construction
and other easements.
B.
Revisions to the drainage plan as may be reasonably required by the
Township Engineer before or during construction.
C.
Construction-related provisions, such as permitted days and hours
of construction, traffic controls, staging and storage of equipment
and materials, site security, noise and dust controls, installation
and use of temporary structures, etc.
D.
Tree preservation, removal and replacement requirements.
E.
Condominium requirements and documentation.
F.
Compliance with state, county and other jurisdictional requirements.
G.
Submission of as-built drawings.
H.
Title 39 requirements.
I.
Insurance, liability and indemnification requirements.
All improvements required by the Board, except electric, telephone,
cable television, street lighting, gas, water and streets not under
the jurisdiction of the Township of Hanover, shall be installed under
the supervision and inspection of the Township Engineer. Such other
improvements shall be installed under the supervision and inspection
of the authority having jurisdiction over such improvements. No construction
work covering the required improvements shall be commenced without
the developer first notifying the Township Engineer and/or Construction
Official, as applicable, that said construction work is about to take
place. Such notice shall be given, in writing, to the Township Engineer
at his office in the Municipal Building at least one week before the
commencement of such work. No required improvements shall be covered
with soil or other improvements until inspected and approved by the
Township Engineer.
