A.
Before recording of final subdivision plats 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-65d, the approving authority may
require and shall accept in accordance with the standards adopted
by this chapter and regulations adopted pursuant N.J.S.A. 40:55D-53a
for the purpose of assuring the installation and maintenance of on-tract
improvements:
(1)
The furnishing of a performance guarantee in favor of the municipality
in an amount not to exceed 120% of the cost of installation, 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, for improvements
which the approving authority may deem necessary or appropriate including:
streets, grading, pavement, gutters, curbs, sidewalks, streetlighting,
shade trees, surveyor's monuments, as shown on the final map and required
by the Map Filing Law, N.J.S.A. 46:23-9.9 et seq., water mains, culverts,
storm sewers, sanitary sewers or other means of sewage disposal, drainage
structures, erosion control and sedimentation control devices, public
improvements of open space and, in the case of site plans only, other
on-site improvements and landscaping.
(2)
The municipal 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.
(3)
Provision for 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 not to exceed 15% of the cost of the
improvement, 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.
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 municipality for such utilities or improvements.
B.
The time allowed for installation of the improvements for which the
performance guarantee has been provided may be extended by the governing
body 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, 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 as of the time of the passage of the resolution.
C.
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 municipality for the reasonable cost of the
improvements not completed or corrected and the municipality 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, N.J.S.A. 40A:11-1 et seq.
D.
Substantial completion.
(1)
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 municipal engineer prepare, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the performance guarantee pursuant to Subsection A(1) of this section, 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 municipal engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the municipal engineer shall inspect all 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.
(2)
The list prepared by the municipal 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. The report prepared by the municipal 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, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the performance guarantee pursuant to Subsection A(1) of this section.
E.
The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the municipal 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 municipal engineer and appended to the performance guarantee pursuant to Subsection A(1) of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the municipal 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 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 posted may be retained to ensure completion and acceptability of all improvements.
(1)
For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the performance guarantee pursuant to Subsection A(1) of this section, including any contingency factor applied to the cost of installation. If the sum of the approved improvements would exceed 70% of the total amount of the performance guarantee, then the municipality may retain 30% of the amount of the total performance guarantee to ensure completion and acceptability of all improvements, as provided above.
(2)
If the municipal engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection D of this section within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the municipal 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 municipal 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 municipal 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 municipal engineer and appended to the performance guarantee pursuant to Subsection A(1) of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
(3)
In the event that the obligor has made a cash deposit with the municipality
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 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.
G.
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 municipal engineer.
H.
The obligor shall reimburse the municipality for all reasonable inspection
fees paid to the municipal engineer for the foregoing inspection of
improvements; provided that the municipality may require of the applicant
a deposit for the inspection fees in an amount not to exceed, except
for extraordinary circumstances, the greater of $500 or 5% of the
cost of improvements, which cost shall be determined pursuant to N.J.S.A.
40:55D-53.4. For those developments for which the inspection fees
are less than $10,000, fees may, at the option of the applicant, be
paid in two installments. The initial amount deposited by an applicant
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
applicant has been reduced by the amount paid to the municipal engineer
for inspection, the applicant shall deposit the remaining 50% of the
inspection fees. For those developments for which the inspection fees
are $10,000 or greater, fees may, at the option of the applicant,
be paid in four installments. The initial amount deposited by an applicant
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
applicant has been reduced by the amount paid to the municipal engineer
for inspection, the applicant shall make additional deposits of 25%
of the inspection fees. The municipal engineer shall not perform any
inspection if sufficient funds to pay for those inspections are not
on deposit.
I.
In the event that final approval is by stages or sections of development
pursuant to N.J.S.A. 40:55D-38a, the provisions of this section shall
be applied by stage or section.
J.
To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to Subsection A(1) of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the municipal engineer.
The applicant shall present two copies of the performance guaranty
in an amount equal to the amount of the approved performance guaranty
estimate for approval as to form and execution by the Township Attorney.
A.
The performance guaranty shall be the approved performance guaranty
estimate and, as surety a performance bond in which the applicant
shall be principal, the bond to be provided by an acceptable surety
company licensed to do business in the State of New Jersey, an irrevocable
letter of credit drawn on a banking institution located or licensed
to do business in the State of New Jersey or such other form of security
as may be approved by the Township Attorney, or cash, or a certified
check shall be deposited with the Township of Mullica by payment to
the Township Treasurer. The performance guaranty in favor of the Township
shall be in an amount not to exceed 120% of the cost of the installation
and improvements. The Township Treasurer shall issue its receipt for
such cash deposits and shall cause the same to be deposited in a bank
named by the Township for this purpose to be retained as security
for completion of all requirements and to be returned to the applicant
on completion of all required work and expiration of the period of
the maintenance guaranty or, in the event of default on the part of
the subdivider, to be used by the Township of Mullica to pay the cost
and expense of obtaining completion of all requirements. Every bond,
whether cash or surety, shall contain a clause to the effect that
the obligation shall remain in full force and effect until such time
as certification is received from the Board Engineer that the principal
has met and complied with all specifications and requirements for
which said cash or surety bond has been posted.
B.
A minimum of 10% of the performance guarantee shall be deposited
with the Township in cash. An applicant may, however, provide at his/her
option, or more than 10% of a performance guarantee in cash.
A.
An applicant shall notify in writing the governing body with copies
to the chief financial officer, the approving authority and the professional
whenever the applicant disputes the charges made by a professional
for service rendered to the municipality in reviewing applications
for development, review and preparation of documents, inspection of
improvements, or other charges made pursuant to the provisions of
N.J.S.A. 40:55D-1 et seq. The governing body, or its designee, shall
within a reasonable time period attempt to remediate any disputed
charges. If the matter is not resolved to the satisfaction of the
applicant, the applicant may appeal to the County Construction Board
of Appeals established under N.J.S.A. 52:27D-127 any charge to an
escrow account or a deposit by any municipal professional or consultant,
or the cost of the installation of improvements estimated by the municipal
engineer pursuant to N.J.S.A. 40:55D-53.4. An applicant or his/her
authorized agent shall submit the appeal in writing to the County
Construction Board of Appeals. The applicant or his/her authorized
agent shall simultaneously send a copy of the appeal to the municipality,
approving authority, and any professional whose charge is the subject
of the appeal. An applicant shall file an appeal within 45 days from
receipt of the informational copy of the professional's voucher required
by N.J.S.A. 40:55D-53.2c, except that if the professional has not
supplied the applicant with an informational copy of the voucher,
then the applicant shall file his/her appeal within 60 days from receipt
of the municipal statement of activity against the deposit or escrow
account required by N.J.S.A. 40:55D-53.2c. An applicant may file an
appeal for an ongoing series of charges by a professional during a
period not exceeding six months to demonstrate that they represent
a pattern of excessive or inaccurate charges. An applicant making
use of this provision need not appeal each charge individually.
B.
The County Construction Board of Appeals shall hear the appeal, render
a decision thereon, and file its decision with a statement of the
reasons therefor with the municipality or approving authority not
later than 10 business days following the submission of the appeal,
unless such period of time has been extended with the consent of the
applicant. The decision may approve, disapprove, or modify the professional
charges appealed from. A copy of the decision shall be forwarded by
certified or registered mail to the party making the appeal, the municipality,
the approving authority, and the professional involved in the appeal.
Failure by the board to hear an appeal and render and file a decision
thereon within the time limits prescribed in this subsection shall
be deemed a denial of the appeal for purposes of a complaint, application,
or appeal to a court of competent jurisdiction.
C.
The County Construction Board of Appeals shall provide rules for
its procedure in accordance with this section. The board shall have
the power to administer oaths and issue subpoenas to compel the attendance
of witnesses and the production of relevant evidence, and the provisions
of the County and Municipal Investigations Law, P.L. 1953, c. 38 (N.J.S.A.
2A:67A-1 et seq.) shall apply.
D.
During the pendency of any appeal, the municipality or approving
authority shall continue to process, hear, and decide the application
for development, and to inspect the development in the normal course,
and shall not withhold, delay, or deny reviews, inspections, signing
of subdivision plats or site plans, the reduction or the release of
performance or maintenance guarantees, the issuance of construction
permits or certificates of occupancy, or any other approval or permit
because an appeal has been filed or is pending under this section.
The chief financial officer of the municipality may pay charges out
of the appropriate escrow account or deposit for which an appeal has
been filed. If a charge is disallowed after payment, the chief financial
officer of the municipality shall reimburse the deposit or escrow
account in the amount of any such disallowed charge or refund the
amount to the applicant. If a charge is disallowed after payment to
a professional or consultant who is not an employee of the municipality,
the professional or consultant shall reimburse the municipality in
the amount of any such disallowed charge.
