Improvement guarantees shall be provided prior
to the recording of final subdivision plats or as a condition of final
site plan approval to ensure the municipality of the proper installation
and maintenance of on-site and on-tract improvements.
A.
Before filing of final subdivision plats or recording of minor subdivision
deeds or 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 or successor developer shall furnish to the municipality
a performance guarantee and/or maintenance guarantee or replacement
guarantees in accordance with N.J.S.A. 40:55D-53 for the purpose of
assuring the installation and maintenance of certain on-tract improvements
as set forth herein:
[Amended 7-25-2018 by Ord. No. 09-2018]
(1)
The performance guarantee shall be in favor of the municipality in
an amount not to exceed 120% of the cost of installation of those
improvements required by an approval or a developer's agreement, ordinance,
or regulation to be dedicated to a public entity, and that have not
yet been installed as shown on the approved plans or plat, including
streets, pavement, gutters, curbs, sidewalks, streetlighting, street
trees, surveyor's monuments, water mains, sanitary sewers, community
septic systems, drainage structures, public improvements of open space
and any grading necessitated by the preceding improvements. The developer
shall also post a performance guarantee, as part of the principal
performance guarantee or by separate performance guarantee, for privately
owned perimeter buffer landscaping required by municipal ordinance
or imposed as a condition of approval.
(2)
The cost shall be determined by the Municipal Engineer according
to the method of calculation set forth in N.J.S.A. 40:55D-53.4. The
Municipal Engineer shall prepare an itemized cost estimate of the
improvements covered by the performance guarantee, which shall be
appended to each performance guarantee posted by the obligor.
(3)
In the event that the developer seeks a temporary certificate of
occupancy for a development, unit, lot building or phase of development,
the developer shall furnish a separate temporary certificate of occupancy
guarantee in favor of the municipality in an amount equal to 120%
of the cost of installation of those improvements or items which remain
to be completed or installed and which are required to be installed
or completed as a condition precedent to the issuance of a permanent
certificate of occupancy and which are not covered by an existing
performance guarantee. All sums remaining under an existing performance
guarantee 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 Municipal Engineer.
The temporary certificate of occupancy guarantee shall be released
by the Municipal Engineer upon the issuance of a permanent certificate
of occupancy.
(4)
The developer shall furnish, as a line item of a performance guarantee
or as a separate performance guarantee, a safety and stabilization
guarantee 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,
provided that:
(a)
Site disturbance has commenced and, thereafter, all work has
ceased for a period of 60 consecutive days for reasons other than
force majeure, and
(b)
Work has not recommenced within 30 days following written notice
by the municipality to the developer of the municipality's intent
to claim payment under the guarantee. The written notice shall be
delivered by method providing evidence of receipt.
(c)
The amount of the safety and stabilization guarantee shall be
as follows:
[1]
For a development with bonded improvements not exceeding $100,000,
the amount shall be $5,000.
(d)
The safety and stabilization guarantee shall be released upon
the earlier of the developer's furnishing a performance guarantee
which includes a line item for safety and stabilization in the amount
required above or the Municipal 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.
(5)
Prior to the release of a performance guarantee required pursuant to Subsection A(1) of this section, the developer shall post with the municipality a maintenance guarantee in the amount not to exceed 15% of the cost of the installation of the improvements which are being released. The term of the maintenance guarantee shall be for a period of two years and shall automatically expire at the end of that term.
(6)
Upon the inspection and issuance of final approval, the developer
shall post a maintenance guarantee in an amount not to exceed 15%
of the cost of the installation of 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 cost shall be determined by the Municipal Engineer according
to the method of calculation set forth in N.J.S.A. 40:55D-53.4. The
term of the maintenance guarantee shall be for a period of two years
and shall automatically expire at the end of that term.
B.
Performance guarantees shall be submitted in the following
form:
(1)
A minimum of 10% of the performance guarantee must
be posted in cash.
(2)
The remaining 90% of the performance guarantee amount
may be posted in cash, certified check, irrevocable standby letter
of credit or surety bond in the favor of the Borough.
(3)
If the applicant elects to post an irrevocable standby
letter of credit, it shall constitute an unconditional payment obligation
of the issuer running solely with the Borough for an express initial
period of time in the amount determined pursuant to N.J.S.A. 40:55D-53;
be issued by a banking or savings institution authorized to do so
and doing business in the State of New Jersey; be for a period of
time of at least one year; and permit the Borough 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 60 days
or more in advance of the expiration date of this letter of credit.
(4)
All guarantees shall provide for construction of the
required improvements within two years of the date of their posting
or such other time as determined by the Planning Board. This time
period may be extended by the governing body, in the form of a resolution
granting such extension provided the Planning Board has, if necessary,
extended the period of protection pursuant to N.J.S.A. 40:55D-52a.
As a condition of this extension, the guarantee amount may be increased
or reduced, as the case may be, to an amount not to exceed 120% of
the installation, which cost shall be determined by the Borough Engineer
as set forth in N.J.S.A. 40:55D-53.4 as of the time of passage of
the resolution.
(5)
All performance guarantees shall remain in effect
until formally released by the governing body by a resolution.
(6)
All guarantees, sureties, and lending institutions
are subject to the approval of the Municipal Attorney and the governing
body.
A.
All site improvements shall be inspected during the time of their installation under the supervision of the Borough Engineer. Prior to the start of construction of any improvements, the applicant shall deposit by cash or certified check with the Municipal Clerk the applicable inspection fee required by Article III.
B.
In no case shall installation of underground facilities
or any paving work be conducted without permission from the Borough
Engineer.
C.
The Engineer's office shall be notified two working
days prior to commencement of each of the following phases of construction
so that the Engineer or a qualified representative may be present
to inspect the work:
(1)
Road subgrade.
(2)
Curb and gutter forms.
(3)
Curbs and gutters.
(4)
Road paving.
(5)
Sidewalk forms.
(6)
Sidewalks.
(7)
Drainage pipes and other drainage construction.
(8)
Street name signs.
(9)
Monuments.
(10)
Sanitary sewers.
(11)
Detention and/or retention basins.
(12)
Topsoil, seeding, planting, shade trees.
D.
Any improvement installed contrary to the plan or
plat approval by the Borough shall constitute just cause to void the
municipal approval.
E.
Any improvements installed without notice for inspection
shall constitute just cause for:
F.
Inspection by the Borough of the installation of improvements
and utilities shall not operate to subject the Borough to liability
for claims, suits or liability of any kind that may at any time arise
because of defects or negligence during construction or at any time
thereafter; it being recognized that the responsibility to maintain
safe conditions at all times during construction and to provide proper
utilities and improvements is upon the owners and his contractor,
if any.
Prior to the signing and recording of final
major subdivision plats and as a condition of final site plan approval
in the case of a site plan, the developer shall enter into an agreement
with the governing body if so required by the Planning Board. This
agreement shall be of a form that is acceptable to the Municipal Attorney
and one in which the developer agrees to abide by the terms and conditions
of approval, construct the required improvements in accordance with
the approved plans, agree to maintain the constructed improvements
including, but not limited to, payment of streetlighting charges pursuant
to N.J.S.A 40:55D-53.6, snow removal, maintenance of storm drainage,
sewer and water facilities. The developer also shall agree that in
the event the improvements are not maintained, the Borough can utilize
the cash portions of the performance guarantees to immediately attend
to items presenting a safety hazard.
A.
Request for list of uncompleted or unsatisfactory
completed improvements.
(1)
Upon substantial completion of required street improvements (except for the top course) appurtenant utility improvements, and the connection of same to the public system, the obligator 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 § 150-92A above, a list of all uncompleted or unsatisfactory completed 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 improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Concurrent with this notice the obligor shall forward a set of as-built plans for the following:
(a)
Roads (plan and profiles).
(b)
Surface and stormwater drainage (plans and profiles)
for facilities in roads and easements.
(c)
Sanitary sewers including individual lot connections
and cleanouts (plans and profiles) for facilities in roads and easements.
(d)
Water mains, gas mains and underground electric,
telephone and community antenna television (C.A.T.V.) conduits (plans
and profiles) for facilities in roads and easements.
(2)
Thereupon the Municipal Engineer shall inspect all
improvements of which such notice has been given and shall file a
detailed report, in writing, with the governing body, and shall simultaneously
send a copy thereof to the obligor not later than 45 days after the
obligor's request.
B.
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 the 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 complete and satisfactory together with a recommendation 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 § 150-92A above.
C.
The governing body, 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 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 § 150-92A above. 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[1]
[1]
Editor's Note: So in original.
D.
If the Borough Engineer fails to send or provide the list and a report as requested by the obligor pursuant to Subsection A above 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. If the governing body fails to approve or reject the 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 § 150-92A above, and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
E.
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.
F.
If any portion of the required improvement is rejected,
the obligor is required to complete such improvements and, upon completion,
the same procedure of notification, as set forth in this section,
shall be followed.
G.
If the required improvements are not completed 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 improvement 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.).
H.
Any release of performance guarantees will be conditioned
upon the provisions of a maintenance guarantee to be posted with the
governing body, for a period not to exceed two years after final acceptance
of the improvement, in an amount equal to 15% of cost of the improvement,
which cost shall be calculated by the Borough Engineer. In the event
that other governmental agencies or public utilities automatically
will own the utilities to be installed or 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.
I.
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.
J.
In the event that the final approval is by stages
or section of development pursuant to N.J.S.A. 40:55D-38, the provisions
of this section shall be applied by stage or section.
