[Amended 2-19-2019 by Ord. No. 1138-19]
A.
Before filing a final subdivision plat or recording a minor subdivision deed or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to Subsection D. of N.J.S.A. 40:55D-65, a developer shall furnish a performance guarantee, and provide for a maintenance guarantee in accordance with the provisions of this subsection.
(1)
The developer shall furnish a performance guarantee in favor of the
Borough 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 Borough 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repealed by Section 2 of P.L. 2011, c.217.)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-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)
The performance guarantee shall be in the Borough's prescribed
form of performance bond on which the subdivider shall be principal,
and secured either by a bonding or surety company approved by the
Council or by a certified bank or cashier's check, the proceeds
of which shall be returnable to the subdivider without interest after
full compliance by the subdivider with all of the requirements of
this chapter and the developer's agreement.
(3)
The performance guarantee shall be approved by the Borough Attorney
as to form, sufficiency and execution. Such performance guarantee
shall run for a period to be fixed by the Planning Board but in no
case for a term of more than three years. However, with the consent
of the owner and of the surety, if there be one, the Council may,
by resolution, extend the term of such performance guarantee for an
additional period or periods not to exceed, in the aggregate, three
years. 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,
as determined as of the time of the passage of the resolution. The
amount of the performance guarantee may be reduced by the Council
by resolution when portions of the required improvements have been
installed.
(4)
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.
(5)
The Borough Engineer shall prepare an itemized cost estimate of the
improvements covered by the performance guarantee, which itemized
cost estimate shall be appended to each performance guarantee posted
by the obligor.
(6)
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.
(7)
At the developer's option, a separate performance guarantee
may be posted for the privately-owned perimeter buffer landscaping.
(8)
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 § 218-62A(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.
(9)
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]
$5,000 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 developer shall post with the Borough, prior to the release of a performance guarantee required pursuant to § 218-62A(1) through (8), a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.
C.
If required, the developer shall post with the Borough, upon the
inspection and issuance of final approval of the following private
site improvements by the Borough Engineer, a maintenance guarantee
in an amount not to exceed 15% of the cost of the installation of
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, if any,
which cost shall be determined 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).
(1)
The term of the maintenance guarantee shall be for a period not to
exceed two years and shall automatically expire at the end of the
established term.
(2)
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 Borough for such utilities or improvements.
D.
The time allowed for installation of the bonded improvements for
which the performance guarantee has been provided may be extended
by the governing body by resolution. As a condition or 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, which cost shall be determined by the
Borough 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) as of the
time of the passage of the resolution.
E.
If the required bonded 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.
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 governing body in writing, by certified mail addressed in care of the municipal clerk, 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 unsatisfactory completed bonded improvements. If such a request is made, the obligor shall send a copy of the request to the Borough Engineer. The request shall indicate which bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon the Borough Engineer shall inspect all bonded improvements covered by obligor's request and shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.
(1)
The list prepared by the Borough Engineer shall state, in detail,
with respect to each bonded 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 bonded improvement
determined to be unsatisfactory.
(2)
The report prepared by the Borough Engineer shall identify each bonded 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 bonded 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 governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Borough Engineer, or reject any or all of these bonded improvements upon the establishment in the resolution of cause for rejection, 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 and appended to the performance guarantee pursuant to Subsection A of this section. 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 governing body, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved bonded 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 total performance guarantee and safety and stabilization guarantee posted may be retained to ensure completion and acceptability of all improvements. 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.
H.
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 Borough Engineer and appended to the performance guarantee pursuant to § 218-62A of this section, 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 Borough 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 Borough below 30%.
I.
If the Borough Engineer fails to send or provide the list and report as requested by the obligor pursuant to § 218-62F within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough Engineer to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
J.
If the governing body fails to approve or reject the bonded improvements determined by the Borough 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 Borough 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 Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
K.
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, provided that if the developer has furnished
a safety and stabilization guarantee, the Borough may retain cash
equal to the amount of the remaining safety and stabilization guarantee.
L.
If any portion of the required bonded 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.
M.
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.
N.
The obligor shall reimburse the Borough for reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements; which fees shall not exceed the sum of the amounts set forth in Subsection N(1) and N(2) of this section. The Borough may require the developer to post the inspection fees in escrow in an amount:
O.
For those developments for which the inspection fees total 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.
P.
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 inspection, the developer shall make additional deposits of 25%
of the inspection fees.
Q.
If the Borough determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to § 218-62A, 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.
R.
In the event that final approval is by stages or sections of development pursuant to Subsection A of Section 29 of P.L. 1975, c.291 (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.
S.
To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to § 218-62A, 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.
To guarantee the proper operation of sewage disposal systems,
the Planning Board may require the posting of a maintenance bond in
a minimum amount of $2,000 for each individual house in a subdivision.
The amount of such bond may be increased beyond $2,000 by the Planning
Board or the Council if, upon recommendation of the Borough Engineer
or the Health Officer, unusual terrain, drainage or soil conditions
or other matters affecting the public health require an increased
bond. Such maintenance bond shall run for a period of 18 months from
the date of issuance of the certificate of occupancy and shall be
posted before the building permit is issued.
A.
Each applicant for residential cluster development containing common
open space shall provide for an organization for the ownership and
maintenance of any such common open space if such open space is not
dedicated to the Borough. Such organization shall not be dissolved
and shall not dispose of any open space by sale or otherwise, except
to an organization conceived and established to own and maintain the
open space for the benefit of such development, and thereafter such
organization shall not be dissolved or disposed of any of its open
space without first offering to dedicate the same to the Borough.
B.
In the event that such organization shall fail to maintain the open
space in reasonable order and condition, which means a condition free
of litter, garbage, debris, trash, dog or other animal waste, or any
other things which would cause an unsightly or offensive appearance,
the Borough Council may serve written notice, by certified mail, return
receipt requested, upon such organization or upon the owners of the
development setting forth the manner in which the organization has
failed to maintain the open space in reasonable condition. Such notice
shall include a demand that the deficiencies of maintenance be cured
within 35 days thereof and shall state the date the place of a hearing
thereon, which shall be held within 15 days of the notice. At such
hearing, the Borough Council may modify by resolution the terms of
the original notice as to deficiencies and may give a reasonable extension
of time, not to exceed 65 days, within which they shall be cured.
If the deficiencies set forth in the original notice or in the modification
thereof shall not be cured within 35 days, or any permitted extension,
the Borough, in order to preserve the open space and maintain the
same, for a period of one year may enter upon and maintain such land.
Such entry and maintenance shall not vest in the public any rights
to use the open space, except when the same is voluntarily dedicated
to the public by the owners and accepted by the Borough. Before the
expiration of such year, the Borough Council, upon its initiative
or upon the request of the organization theretofore responsible for
the maintenance of the open space, call a public hearing, upon 15
days written notice to such organization and to the owners of the
development, to be held by the Borough Council. At the hearing the
organization and the owners of the development shall show cause why
such maintenance by the Borough shall not, at the election of the
Borough, continue for a succeeding year. If the Borough Council shall
determine that such organization is ready and able to maintain the
open space in reasonable condition, the Borough shall cease to maintain
the open space at the end of the year. If the Borough Council shall
determine such organization is not ready and able to maintain the
open space in as reasonable condition, the Borough may, in its discretion,
continue to maintain the open space during the next succeeding year,
subject to a similar hearing and determination, in each year thereafter.
The decision of the Borough Council on any such case shall constitute
a final administrative decision subject to judicial review.
C.
The cost of such maintenance by the Borough shall be assessed pro
rata against the properties within the residential cluster development
that have a right of enjoyment of the open space in accordance with
assessed value at the time of imposition of the lien, and shall become
a lien and tax on such properties and be added to and be a part of
the taxes to be levied and assessed thereon, and enforced and collected
with interest by the same officers and in the same manner as other
taxes.
