[Amended 2-14-1985 by Ord. No. 1-1985]
[Amended 4-26-2018 by Ord. No. 1-2018]
A.
Performance guaranties.
(1)
No final application for development shall be approved by the
Board until the satisfactory completion and performance of those improvements
required by an approval or developer's agreement, ordinance, or regulation
to be dedicated to a public entity, which improvements shall be certified
to the Board by the City Engineer and unless the owner shall have
filed with the municipality a performance guaranty assuring the installation
of those improvements that are to be dedicated to a public entity
on or before an agreed date and as hereinafter provided.
(2)
Before the filing of final subdivision plats or recording of
minor subdivision deeds or as a condition to the issuance of a zoning
permit pursuant to Subsection d of Section 52 of P.L. 1975, c. 291
(N.J.S.A. 40:55D-65) the owner shall have filed with the City a performance
guaranty assuring the installation of those improvements that are
to be dedicated to a public entity on or before an agreed date and
as hereinafter provided.
(3)
A developer or owner shall file with the City a performance
guaranty for privately owned perimeter buffer landscaping as required
by ordinance or imposed as a condition of approval within an approved
phase or section of a development. At the developer or owner's option,
a separate performance guaranty may be posted for the privately owned
perimeter buffer landscaping.
B.
Except as hereafter provided, the remaining required
improvements shall be at least 50% completed as to each category set
forth in the performance guaranty within one year from the date of
final approval or by such time as 50% of the lots in the section in
question have been conveyed in any manner by the applicant, whichever
shall first occur. At least 75% of the remaining required improvements
shall be completed as to each category as set forth in the performance
guaranty within 18 months from the date of final approval, or at such
time as 75% of the lots in the section in question have been conveyed
in any manner by the applicant, whichever shall first occur. Such
improvements shall be 100% completed and accepted by the city within
two years from the date of final approval or at such time as all of
the lots in the section in question have been conveyed in any manner
by the applicant, whichever shall first occur. It is the intention
of the governing body that this requirement will provide to those
living in each new section of a development a dwelling unit that is
as complete as possible with respect to tract and individual lot improvements,
and that the requirements for site improvements are adhered to.
C.
A performance guaranty estimate shall be prepared by the applicant,
setting forth all requirements for improvements to be dedicated to
a public entity and any privately owned perimeter buffer landscaping
and their estimated cost. Said estimate shall be reviewed by the City
Engineer, who shall either approve or adjust this performance guaranty.
The performance guaranty shall be calculated pursuant to the requirements
of Section 41 of P.L. 1975, c. 291 [N.J.S.A. 40:55D-53a(1)(a)].
D.
Other guaranties.
(1)
Temporary certificate of occupancy guaranty.
(a)
In the event a developer or owner seeks a temporary certificate
of occupancy for a development, unit, lot, building, or phase of a
development, the developer or owner shall furnish a separate guaranty
to the City 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 which
are not covered by an existing performance guaranty. The scope of
the temporary certificate of occupancy guaranty shall be determined
by the City Engineer.
(2)
Safety and stabilization guaranty.
(a)
A developer or owner shall furnish to the City a safety and
stabilization guaranty 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 under the circumstances as set forth within N.J.S.A. 40:55D-53(d).
(b)
The amount of the safety and stabilization guaranty is to be
calculated pursuant to the requirements of N.J.S.A. 40:55D-53(d) and
at the developer's option may be furnished either as a separate guaranty
or as a line item of the performance guaranty.
E.
Approval by City Attorney.
(1)
The applicant shall present two copies of all performance guaranties,
temporary certificate of occupancy guaranties, and safety and stabilization
guaranties in amounts equal to 100% of the approved guaranty estimate
for approval as to form and execution by the City Attorney.
[Amended 4-26-2018 by Ord. No. 1-2018]
The performance guaranty, temporary certificate of occupancy
guaranty and safety and stabilization guaranty shall be made payable
and deposited to the City of Somers Point and shall be in the form
of cash or a certified check or an unlimited letter of credit from
a bank 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 City shall issue its receipt
for such deposits and shall cause the same to be deposited in a bank
named by the municipality in the name of the City to be retained as
a security for completion of all required work or, in the event of
default on the part of the owner, to be used by the City to pay the
cost and expense of obtaining completion of all requirements. Every
performance guaranty shall contain a clause to the effect that a determination
by the City Engineer that the principal has defaulted in the performance
of his obligation shall be binding and conclusive.
A.
All improvements and utility installations shall be inspected during
the time of their installation under the supervision of the City Engineer
to ensure satisfactory completion. The cost of said inspection shall
be the responsibility of the owner or developer, and he shall deposit
with the City Treasurer, for placement in escrow, a sum not to exceed,
except for extraordinary circumstances, the greater of $500 or equal
to 5% of the amount of the cost of bonded improvements that are subject
to a performance guaranty, and not to exceed 5% of the cost of private
site improvements that are not subject to a performance guaranty.
For subdivisions, the owner or developer shall deposit an amount not
to exceed 5% of the amount of the cost of all improvements to be applied
to inspection costs. If inspection costs exceed such fund, the owner
or developer shall deposit with the City Treasurer additional sums
upon written notice signed by the City Engineer which informs the
owner or developer of the need for additional funds, details the items
or undertakings that require inspection, estimates the time required
for those inspections, and estimates the cost of performing those
inspections. The City Treasurer shall return any balance of the inspection
deposit to the owner upon expiration of the maintenance bond, together
with the paid invoice for all expenses charged, except that the inspection
fee shall in no case be less than $100.
[Amended 4-26-2018 by Ord. No. 1-2018]
B.
In no case shall any paving work, where a performance
guaranty is required, be done without permission from the City Engineer's
office. At least two days' notice shall be given to the City Engineer's
office prior to any such construction so that he or a qualified representative
may be present at the time the work is to be done.
C.
The City Engineer's office shall be notified after
each of the following phases of the work has been completed 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 paving. A core sample shall be taken by
the City Engineer, at the applicant's expense, at distances within
the discretion of the City Engineer and, also at the applicant's expense,
shall be subjected to laboratory testing, and reports shall be submitted
by the City Engineer and recorded in the office of the City Clerk.
(5)
Sidewalk forms.
(6)
Sidewalks.
(7)
Drainage pipes and other drainage structures
before backfilling.
(8)
Street name signs.
(9)
Exterior lighting.
(10)
Monuments.
D.
A final inspection of all improvements and utilities
will be started within 10 days' notification by the subdivider to
determine whether the work is satisfactory and in agreement with the
approved final drawings and the city specifications. The general condition
of the site shall also be considered. Upon a satisfactory final inspection
report, action will be taken to release or declare in default the
performance guaranty covering such improvements and utilities.
E.
Inspection by the city of the installation of improvements
and utilities shall not operate to subject the city 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 contractors,
if any.
F.
After completing the construction of the public improvements
covered by the performance guaranty, the applicant shall prepare a
set of the approved public improvement and utility plans and profiles
amended to read as constructed and apply to the City Engineer for
final inspection of the work. The City Engineer shall report to the
governing body on the condition of the work and recommend that the
performance guaranty be released, extended or declared in default.
G.
Release of guaranties.
[Amended 4-26-2018 by Ord. No. 1-2018]
(1)
Release of performance guaranty. The governing body shall, by
resolution, release or declare in default each performance guaranty.
Prior to the governing body releasing a performance guaranty, the
Construction Official must have reviewed the request for release and
officially recommended such release. Such performance guaranty shall
remain in effect until released by the governing body. The amount
of the performance guaranty may be reduced by the governing body by
resolution when portions of the required improvements have been installed
and have been inspected, provided that 30% of the amount of the total
performance guaranty and safety and stabilization guaranty posted
shall be retained to ensure completion and acceptability of improvements.
Any amount of the performance guaranty attributable to bonded improvements
for which a temporary certificate of occupancy guaranty has been posted
shall be released from the performance guaranty even if such release
would reduce the amount held by the municipality below 30%. No reduction
shall be approved until the City Engineer shall have certified the
estimated cost of completing any remaining required improvements.
If any improvements have not been installed in accordance with the
performance guaranty, the obligor and surety shall be liable thereon
to the City for reasonable cost on the improvements not installed
and, upon receipt of the proceeds thereof, the City shall install
such improvements. The City shall also have all other remedies as
may be lawfully available.
(2)
Release of temporary certificate of occupancy guaranty. The
City shall not hold more than one guaranty or bond of any type with
respect to the same line item. Upon the posting of a temporary certificate
of occupancy guaranty, all sums remaining under a performance guaranty
which relate to the development, unit, lot, building, or phase of
development for which the temporary certificate of occupancy is sought,
shall be released. A temporary certificate of occupancy guaranty shall
be released by the City 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.
(3)
Release of safety and stabilization guaranty. The City shall
release a safety and stabilization guaranty to a developer upon the
developer's furnishing of a performance guaranty which includes a
line item for safety and stabilization in the amount required within
N.J.S.A. 40:55D-53(d), or upon the City 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.
H.
Conditions for acceptance of improvements. The approval
of any application for development by the city shall in no way be
construed as acceptance of any street or drainage system or any other
improvement, nor shall such approval obligate the city in any way
to maintain or exercise jurisdiction over such street or drainage
system or other improvement. No improvement shall be accepted by the
governing body unless and until all of the following conditions have
been met:
(1)
The City Engineer shall have certified in writing
that the improvements are complete and that they comply with the requirements
of this chapter.
(2)
The final application for development shall
have been approved by the Planning Board.
(3)
The owner shall have filed with the governing body a maintenance
guaranty in an amount not to exceed 15% of the cost of installing
the improvements which are being released. Upon the inspection and
issuance of final approval of certain private site improvements by
the City Engineer, the developer shall post a maintenance guaranty
in an amount not to exceed 15% of the cost of the installation of
the following private site improvements: stormwater management basins,
inflow and water quality structures within the basins, and the outflow
pipes and structures of the stormwater management system which shall
be calculated pursuant to the Municipal Land Use Law.[1] The maintenance guaranty shall run for a period of two
years and shall automatically expire at the end of the established
term. The procedures and requirements governing such maintenance guaranty
shall be identical with the procedures and requirements for a performance
guaranty set forth in this chapter. The requirements for a maintenance
guaranty may be waived by the governing body only if the City Engineer
has certified that the improvements have been in continuous use for
not less than two years from the date the City Engineer certified
completion of such improvements and that during this period the owner
has maintained the improvements in a satisfactory manner.
[Amended 4-26-2018 by Ord. No. 1-2018]
[1]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
A.
Improvements to be constructed at the sole expense
of the subdivider. In cases where the need for an off-tract improvement
is created by the proposed subdivision or site plan and where no other
property owners receive a special benefit thereby, the Planning Board
may recommend to the governing body that it require the subdivider
or developer, as a condition for subdivision or site plan approval,
at the subdivider's or developer's expense, to acquire lands outside
of the subdivision or tract and improve and dedicate such lands to
the city or the county or, in lieu thereof, require the subdivider
or developer to deposit with the city a sum of money sufficient to
allow the municipality to acquire and to improve such lands.
B.
Other improvements.
(1)
In cases where the need for any off-tract improvement
is created by the proposed subdivision or site plan and where the
Planning Board determines that properties outside the subdivision
or tract will also be benefited by the improvement, the Planning Board
shall forthwith forward to the municipal governing body a list and
description of all such improvements, together with its request that
the governing body determine and advise the Board of the procedure
to be followed in the construction or installation thereof. The Planning
Board shall withhold action upon the subdivision or site plan until
receipt of the governing body's determination or until the expiration
of 60 days after the forwarding of such list and the description to
the governing body without such determination having been made, whichever
occurs sooner.
(2)
The governing body, within 60 days afte receipt
of said list and description, shall determine and advise the Planning
Board whether:
(a)
The improvement or improvements are to be constructed
or installed by the municipality:
[1]
As a general improvement, the cost of which
is to be borne at general expense (except as hereinafter otherwise
provided as to a contribution thereto by the subdivider or developer);
or
[2]
As a local improvement, all or part of the cost
of which is to be specially assessed against properties benefited
thereby in proportion to benefits conferred by the improvements in
accordance with Chapter 56 of Title 40 of the Revised Statutes (except
as hereinafter otherwise provided as to a contribution thereto by
the subdivider or developer).
(b)
The improvement or improvements are to be constructed
or installed by the subdivider or developer under a formula for partial
reimbursement as hereinafter set forth.
(3)
If the governing body shall determine that the improvement or improvements shall be constructed or installed under Subsection B(2)(a)[1] above, the Planning Board shall estimate, with the aid of the municipal engineer or such other persons as have pertinent information or expertise, the amount, if any, by which the total cost thereof will exceed the total amount by which all properties, including the subdivision or tract, will be specifically benefited thereby, and the subdivider or developer shall be liable to the municipality for such excess. Further, the governing body shall adopt an ordinance authorizing and providing for the financing of the improvement or improvements in a manner consistent with the obligation of the subdivider or developer for any excess of total cost over total benefits conferred, as set forth above.
(4)
If the governing body shall determine that the improvement or improvements shall be constructed or installed under Subsection B(2)(a)[2] above, the Planning Board shall, as provided in Subsection B(3) of this section, estimate the difference between the total costs to be incurred and the total amount by which all properties to be benefited thereby, including the subdivision property or tract, will be specifically benefited by the improvement, and the subdivider or developer shall be liable to the municipality therefor, as well as for the amount of any special assessments against the subdivision property or tract for benefits conferred by the improvement or improvements. Further, the governing body shall adopt an ordinance authorizing and providing for the financing of the improvement or improvements and the assessment of benefits arising therefor in a manner consistent with the obligation of the subdivider or developer with respect thereto, and proceedings under said ordinance shall be in accordance with Chapter 56 of Title 40 of the Revised Statutes, except to the extent modified by the obligation of the subdivider or developer for any excess of total costs over total benefits conferred, as set forth above.
(5)
If the governing body shall determine that the improvement or improvements are to be constructed or installed by the subdivider or developer under Subsection B(2)(b) above, the Planning Board shall, in like manner, estimate the amount of such excess, and the subdivider or developer shall be liable to the municipality therefor as well as for the amount of any special assessments against the subdivision property or tract for benefits conferred by the improvement or improvements. However, the subdivider or developer shall be entitled to be reimbursed by the municipality for the amount of any special assessments against property other than the subdivision property or tract for benefits conferred by the improvement or improvements, and proceedings under said ordinance shall be in accordance with Chapter 56 of Title 40 of the Revised Statutes. However, any such assessment against the subdivision property or tract shall be marked paid and satisfied in consideration of the construction or installation of the improvement or improvements of the subdivider or developer.
(6)
If the governing body shall not adopt such an
ordinance or resolution within said time, the final subdivision layout
or site plan shall be designed accordingly, and the Planning Board
shall thereupon grant or deny final approval.
C.
Performance guaranty. The subdivider or developer
shall be required to provide, as a condition for final approval of
his subdivision or site plan application, a performance guaranty running
to the municipality as follows:
(1)
If the improvement is to be constructed by the subdivider or developer under Subsection A or under Subsection B(2)(b) of this section, a performance bond with surety in an amount equal to the estimated cost of the improvement, or as to any part of said improvement that is to be acquired or installed by the municipality under said Subsection A, a cash deposit equal to the estimated cost of such acquisition or installation by the municipality.
(2)
If the improvement is to be constructed by the municipality as a general improvement under Subsection B(2)(a)[1] of this section, a cash deposit equal to the amount of the excess of the estimated cost of the improvement over the estimated total amount by which all properties, including the subdivision property or tract, will be specifically benefited thereby.
(3)
If the improvement is to be constructed by the municipality as a local improvement under Subsection B(2)(a)[2] of this section, a cash deposit equal to the amount referred to in the preceding subsection plus the estimated amount by which the subdivision property or tract will be specifically benefited by the improvement.
D.
Refund of deposit where improvements are not authorized
within three years. In any case in which a subdivider or developer
shall deposit money with the municipality for the completion of an
improvement that is to be constructed pursuant to this chapter by
the municipality, the subdivider or developer shall be entitled to
a full refund of such deposit if the governing body of the municipality
shall not have enacted an ordinance authorizing the improvement within
three years after the date all other subdivision improvements are
completed. The money shall be in an interest-bearing account, and
the principal and interest shall be returned to the developer if the
improvement is not installed.
E.
Deposit of funds. All moneys paid by the subdivider
or developer pursuant to this chapter shall be paid over to the municipal
treasurer who shall provide a suitable depository therefor. Such funds
shall be used only for the improvements for which they are deposited
or improvements serving the same purpose. A suitable depository shall
be defined as an insured, interest-bearing account.
F.
Redetermination of assessment upon completion of improvement.
Upon completion of off-tract improvements required pursuant to this
section, the subdivider's or developer's liability hereunder shall
be recalculated in accordance with the actual, as compared with the
estimated, costs of the improvements. To the extent that it shall
decrease the amount thereof, the municipality shall forthwith refund
the amount of such decrease to the subdivider or developer. In cases
where improvements are specially assessed against all benefited properties,
recalculation shall be made by the assessment proceedings. In other
cases, it shall be made by the municipal engineer.
G.
Council approval required. All estimates required
to be made by the Planning Board herein shall be reviewed and approved
by the governing body as to final action thereon.
H.
Off-tract assessment.
[Amended 10-26-2006]
(1)
In order for the City to provide for appropriate recreation facilities for all City residents, the City of Somers Point Planning Board and the City of Somers Point Zoning Board shall require any residential major subdivision applicant and any site plan approval applicant seeking residential development of more than three dwelling units to post an off-tract assessment for the reasonable contribution cost of recreation facilities in accordance with Subsection H(2), (4) and (5) below, unless the Board is satisfied pursuant to Subsection H(6) below that an applicant's plan adequately and sufficiently provides recreation facilities.
(2)
The reasonable contribution cost established
on each newly created lot including the original lot, or on each new
dwelling unit, as the case may be, with respect to any applicant seeking
major subdivision and any site plan applicant seeking approval of
a residential development of more than three dwelling units shall
be as follows:
(3)
The requirement for such fees shall be imposed
by the City of Somers Point Planning Board and the City of Somers
Point Zoning Board at the time of a residential major subdivision
approval and at the time of a site plan approval for residential development
of more than three dwelling units. Payment of the contribution required
pursuant hereto shall be made prior to the signing of the final plans
by the Planning Board Chairman or Zoning Board Chairman, Planning
Board or Zoning Board Secretary or City Engineer, and shall be used
solely for the purchase, periodic lease, development or maintenance
of facilities used or to be used for public recreational purposes.
No building permit shall be issued until and unless such payment has
been made and such signing takes place.
(4)
If the applicant perfects a residential major
subdivision by the filing of deeds rather than the filing of the residential
major subdivision plan, the fees shall be paid prior to the filing
of such deeds. The applicant shall send written confirmation of payment
to the Chairman of the City of Somers Point Planning Board or the
Chairman of the City of Somers Point Zoning Board, as the case may
be.
(5)
The contribution for dwelling units created
by a site plan application for residential development of more than
three dwelling units shall be paid prior to the issuance of any building
permit for any dwelling unit, and no building permit shall be issued
without such payment.
(6)
Alternatively, the City of Somers Point Planning
Board and the City of Somers Point Zoning Board, as the case may be,
shall in their discretion have the option to waive the imposition
of the reasonable contribution cost with respect to an affected application
if the Board is satisfied the applicant has provided adequate and
sufficient recreation facilities available to the public for public
use as part of its application and that the applicant has demonstrated
to the satisfaction of the Board's Engineer that the cost of the recreation
facilities provided in the application exceeds the cost that would
be generated by the off-tract assessment for the application. In such
instance, the Board shall express that conclusion and the reasons
for such conclusion in its motion of approval and any resolution memorializing
same.
