[Amended by Ord. No. 1997-29; Ord. No. 2005-3]
A. Prior to recording of final subdivision plats or as a condition of
final site plan approval or as a condition to the issuance of a development
(zoning) permit, the Planning Board or Zoning Board of Adjustment
may require and shall accept in accordance with standards herein a
performance guarantee.
[Amended 12-16-2015 by Ord. No. 2015-33]
(1) The guarantee shall be sufficient in amount not to exceed 120% of
the total cost to the Borough, as estimated by the Borough Engineer,
of constructing those on-site, off-site and off-tract improvements
necessary to protect adjacent property and the public interest in
the event development of the subdivision or site were not completed.
Such improvements shall include, but are not limited to, drainage
facilities necessary to protect off-tract areas from flooding, erosion
control and sedimentation control devices, required screening and
fencing, all improvements within public rights-of-way, easements and
the cost of seeding or otherwise stabilizing the site or subdivision,
streets, grading, pavement, gutters, curbs, sidewalks, streetlighting,
shade trees, surveyor's monuments, water mains, culverts, storm sewers,
sanitary sewers, drainage structures, public improvements of open
space and, in the case of site plans only, other on-site improvements
and landscaping.
(2) The total cost shall be estimated by the Borough Engineer based on
documented construction costs for public improvements prevailing in
the general area of Red Bank. The developer may appeal the Borough
Engineer's estimate to the County Construction Board of Appeals pursuant
to N.J.S.A. 52:27D-127.
(3) Such guarantee shall assure the installation of such improvements
on or before an agreed date, guarantee the completion of all improvements
without damage to or interference with adjacent properties or public
facilities, and hold the Borough Council and the municipal agency
and their employees and agents harmless with respect to any acts of
the developer, its agents, successors or assigns.
(4) The total estimated cost to the Borough of constructing all improvements
shall be based upon the estimated contract construction costs, which
would prevail upon expiration of the guarantee period, and shall also
include appropriate allowances for contract-related costs such as
engineering, legal, financial and other usual costs, which shall be
estimated to be 120% of the estimated contract construction costs.
(5) Such performance guarantee may be in the form of cash, certified
check, negotiable securities, a performance bond issued by a bonding
company or surety company approved by the Borough Council, irrevocable
letter of credit pursuant to N.J.S.A. 40:55D-53.5 or any other type
of surety acceptable to and approved by the Borough Attorney and Borough
Council, provided that at least 10% of the performance guarantee shall
be in the form of cash, certified check, or savings passbook or certificate
of deposit drawn on an insured banking institution in the State of
New Jersey; provided, however, that all rights, including the right
to interest with dividends, be assigned to the Borough in a form of
assignment acceptable to the Borough Attorney for the period of the
bond, and that the principal amount of the passbook or certificate
of deposit, together with interest, be returned to the developer upon
completion of the bonded improvements, or, in the event of default,
both interest and principal shall be used by and for the benefit of
the Borough in the completion of said improvements.
B. If at the time the performance guarantee is filed with the Borough,
the developer has not also filed with the Borough proof that any other
necessary performance guarantees have been filed and accepted by governmental
bodies, authorities, public utility companies, and private utility
companies other than the Borough, which have jurisdiction over improvements
in the site or subdivision, the amount of the performance guarantee
shall be increased to reflect the cost of such improvements.
C. All performance guarantees shall run to and be in favor of the Borough
of Red Bank in the County of Monmouth.
D. The performance guarantee shall be approved by the Borough Attorney
as to form, sufficiency and execution and shall be subject to the
following conditions:
(1) Such performance guarantee shall run for a period to be fixed by the Borough Council, but in no case for a term longer than the period of final approval (normally two years) set by N.J.S.A. 40:55D-1 et seq. and/or §
490-7L(7) of this chapter or for the time period allowed by the municipal agency for the installation of all or any portion of the improvements, whichever is shorter.
(2) The time allowed for installation of improvements for which the performance guarantee has been provided may be extended by resolution of the Borough Council, provided that, if required, the period of final approval has been extended by the municipal agency in accordance with N.J.S.A. 40:55D-1 et seq. and/or §
490-7L(7) of this chapter, and provided further that:
(a)
Such extension shall not exceed one year; and
(b)
There shall not be more that three such extensions; and
(c)
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
of all uncompleted improvements as determined by the Borough Engineer
as of the time of the passage of the resolution.
(3) 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.
E. If during the period of the performance guarantee the developer fails
to prosecute the work of completing the improvements so as not to
create hazards to life, health, property or public safety, the Borough
may, after five days' notice, perform, or cause to be performed, any
necessary corrective work and deduct the cost thereof from the ten-percent
cash or certified check portion of the guarantee. Upon notice of any
such deduction, the developer shall, within 10 days, restore the full
ten-percent cash balance or his performance guarantee will be held
to be void and the Borough may take action as if final plat approval
has not been obtained.
F. Upon substantial completion of all required appurtenant utility improvements,
and the connection of same to the public system, the obligor may notify
the Borough Council, in writing, by certified mail addressed in care
of the Borough Clerk, of the completion or substantial completion
of improvements and shall send a copy thereof to the Borough Engineer.
Thereupon, the Borough Engineer shall inspect all improvements of
which such notice has been given and shall file a detailed report,
in writing, with the Borough Council, indicating either approval,
partial approval or rejection of such improvements, with a statement
of reasons for any rejection. The cost of the improvements as approved
or rejected shall be set forth.
G. The Borough Council shall either approve, partially approve or reject
the improvements on the basis of the report of the Borough Engineer
and shall notify the obligor, in writing, by certified mail, of the
contents of said report and the action of said approving authority
with relation thereto not later than 65 days after receipt of the
notice from the obligor of the completion of the improvements. Where
partial approval is granted, the obligor shall be released from all
liability pursuant to its performance guarantee, except for that portion
adequately sufficient to secure provision of the improvements not
yet approved, provided that 30% of the amount of the performance guarantee
posted may be retained to ensure completion of all improvements. Failure
of the Borough Council to send or provide such notification to the
obligor within 65 days shall be deemed to constitute approval of the
improvements, and the obligor and surety, if any, shall be released
from all liability pursuant to such performance guarantee for such
improvements.
H. If any portion of the required improvements are rejected, the Borough
Council may require the obligor to complete such improvements, and,
upon completion, the same procedure of notification, as set forth
in this section, shall be followed.
I. Nothing herein, however, shall be construed to limit the right of
the obligor to contest by legal proceedings any determination of the
Borough Council or the Borough Engineer.
J. The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements, provided that the municipality may require of the developer a deposit for all or a portion of the reasonably anticipated fees to be paid to the Borough Engineer for such inspection, and provided further that such reasonably anticipated fees are hereby determined and set forth in §
490-10 of this chapter.
K. In the event that final approval is by stages or sections of development
pursuant to Subsection a of Section 29 of the Municipal Land Use Act
(N.J.S.A. 40:55D-38), the provisions of this section shall be applied
by such stage or section.
[Amended by Ord. No. 1997-29]
A. Duties of Borough Engineer, Borough Attorney and administrative officer.
No performance guarantees shall be presented for approval of the Borough
Council until the municipal officials listed below have performed
the following:
(1) Borough Engineer. The Borough Engineer shall:
(a)
Where applicable, examine the plat map of a subdivision to make
certain that it complies with all state laws and this chapter relative
to the preparation and filing of maps or plans for the subdivision
of land.
(b)
Determine those improvements the applicant is to install to
protect the Borough, such as to provide proper drainage, streets,
curbs, signs, monuments or any other item or thing and the cost of
each, as well as the maximum time he recommends granting the applicant
to provide each item or all items.
(c)
Give the applicant all figures, dates and details required by Subsection
A(1)(b) of this section so that same may be included in the bond to be furnished to the Borough; also, advise the applicant of the amount required to pay the Borough as a proper inspection, testing and administration fee.
(d)
Also state and give the nature of cash, or its equivalent, required
as a portion or all of the performance guarantee (i.e., cash, certified
check, cash escrow deposit, or other security).
(e)
If there is nothing the applicant needs to do under Subsection
A(1)(d) of this section, the Borough Engineer shall so state and give the reason therefor.
(2) Borough Attorney. The Borough Attorney shall:
(a)
Upon receipt, the Borough Attorney shall promptly examine said
bond and determine whether or not it is correct in form, content and
execution. If the bond is not correct, the Borough Attorney shall
notify the applicant and administrative officer of its shortcomings.
When the bond is or has been made correct, the Borough Attorney shall
make a written certificate to that effect to the administrative officer.
(b)
When required, determine if the landowner is an individual,
corporation or partnership; if an individual, his full name and address;
if a corporation, its correct name, date and state of incorporation,
the name of its President and Secretary and location of its principal
office in this state; if a partnership, the names and addresses of
all partners.
(3) Administrative officer. The administrative officer shall:
(a)
Ascertain that the plat of a site plan or subdivision has been
approved by the Monmouth County Planning Board and the Borough Planning
Board or Board of Adjustment.
(b)
Ascertain that all applicable conditions of approval have been
met.
(c)
Obtain the original of all bonds (cash and surety) and confirm
that they comply with the Engineer's estimate and attorney's certificate.
(d)
Collect from the applicant the proper fee or fees, if any, payable
to the Borough in accordance with the Engineer's certificate.
(e)
Request the Borough Clerk to place the matter of approval of
bond(s) on the agenda of the next regular meeting of the Borough Council
for its consideration.
(f)
Submit copies of all bonds, attorney's certificate and fees
to the Borough Clerk for the next regular meeting of the Borough Council.
B. Certificates: form; dating. Each of said certificates shall be dated
and written in letter form upon the stationery of the maker or of
the Borough and signed by him or his authorized agent or representative.
C. Bond requirements. There must be attached to said bond an authority
to the surety company empowering the person or persons who executed
said bond for the surety company to do so. If the bonding company
is not a New Jersey corporation, there should also be attached to
the bond proof of its authority to do business in New Jersey and a
copy of its last financial statement, made not more than one year
before, showing its financial condition. If the principal on the bond
is a corporation, there must be attached to the bond a certified copy
of a resolution adopted by its Board of Directors authorizing the
execution and delivery of said bond. Said bond must also bear the
corporate seal of the surety company and the seal, corporate or otherwise,
of the principal.
D. Copies. The Borough Clerk and administrative officer shall keep a
supply of copies of these bond requirements in his office for the
use of applicants and the general public.
[Amended by Ord. No. 1997-29]
A. General requirements. Where the municipal agency determines that
off-tract improvements are necessary for the proper development and
utilization of the proposed site or subdivision and the surrounding
area, it may require either that such off-tract improvements be installed
or that the developer contribute to the installation of such off-tract
improvements. Where the municipal agency has determined that off-tract
improvements are required, it shall be a condition of the granting
of final approval that such improvements be constructed or that the
developer shall make payments toward the ultimate installation of
off-tract improvements such as, but not limited to, streets, curbs
and gutters, sidewalks, water mains, sanitary sewers, storm sewers
and culverts, monuments and streetlights, all in accordance with the
specifications governing contract improvements.
B. Cost allocation. If the municipal agency determines that the developer
may contribute toward required off-tract improvements in lieu of such
improvements being installed, the municipal agency shall allocate
the cost of said off-tract improvements in accordance with the standards
hereinafter set forth. The improvement of a stream and/or widening
of, or the construction of drainage or other improvements in, a street
or road fronting on the tract to be subdivided and/or developed shall
not constitute an off-tract improvement, and the cost of said improvement
shall not be allocated.
(1) The allocation of the cost of off-tract improvements shall be determined
in accordance with the following:
(a)
The municipal agency may consider the total cost of the off-tract
improvements, the benefits conferred upon the site or subdivision,
the needs created by the site or subdivision, population and land
use projects for the general areas of the site or subdivision and
other areas to be served by the off-tract improvements, the estimated
times of construction of off-tract improvements and the condition
and periods of usefulness, which periods may be based upon the criteria
of N.J.S.A. 40A:2-22. The municipal agency may further consider the
criteria set forth below.
(b)
Road, curb, gutter and sidewalk improvements may be based upon
the anticipated increase of traffic generated by the site or subdivision.
In determining such traffic increase, the municipal agency may consider
traffic patterns, quality of roads and sidewalks in the area, and
the other factors related to the need created by the site or subdivision
and anticipated thereto.
(c)
Drainage facilities may be based upon the percentage relationship
between the site or subdivision acreage and the acreage of the total
drainage basins involved or upon calculations developing the percentage
contribution that the storm runoff from a particular site or subdivision
bears to the total design capacity of any improvement; the particular
methods to be selected in each instance by the Borough Engineer.
(d)
Water supply and distribution facilities and sewage facilities
shall be based upon a proportion as determined by the current rules
and regulations or procedures of the Red Bank Borough Public Utilities
Department.
(2) All monies received by the municipality in accordance with the provisions
of this section shall be paid to the Municipal Treasurer, who shall
provide for a suitable depository therefor. Such funds shall be used
only for the improvements serving the same purposes, unless such improvements
are not initiated for a period of five years from the date of payment,
after which time said funds shall be transferred to the capital improvement
fund of the municipality.
(3) The apportionment of costs shall be determined by the municipal agency.
The developer shall be afforded an opportunity before said Board to
present evidence relative thereto.
C. Assessment not precluded. Nothing in this section of the chapter
shall preclude the municipality from assessing any property benefiting
from installation of any off-tract improvements as provided in this
section pursuant to the provisions of the Revised Statutes of New
Jersey, an allowance being made to the respective parcels of realty
for payments herein.
Before any developer effectively assigns any of his interest
in any preliminary or final approval, he must notify the administrative
officer and supply detailed information with regard to the name, address,
principals, type of organization, competency, experience and past
performance of the assignee, transferee or agent. Notice of such assignment
or transfer shall be given no later than 10 days after its effective
date. The assignee must be made acquainted with all the conditions
of approval, and the developer shall so certify.
A maintenance guarantee shall be furnished by the developer upon release of the performance guarantee, acceptance of public improvements by the Borough Council and/or approval of site improvements by the Borough Engineer. The developer may elect to furnish such maintenance guarantee either by maintaining on deposit with the Borough the ten-percent cash or certified check portion of the performance guarantee provided in accordance with §
490-69 of this chapter or by a bond issued by a bonding company or surety company, or other type of surety acceptable to and approved by the Borough Attorney and Borough Council in an amount equal to 15% of the total performance guarantee provided in accordance with §
490-69 of this chapter. The maintenance guarantee shall begin with the release of the performance guarantee and shall run for a period of two years. The maintenance guarantee shall be to the effect that the applicant, developer, owner or user guarantees the complete maintenance of all improvements for a period of two years from the release of his performance guarantee. Should he fail in his obligation to properly maintain all improvements, the Borough may, on 10 days' written notice or immediately in the case of hazard to life, health or property, proceed with necessary repair or replacement of any unacceptable improvements and charge the cost thereof against the guarantee. At the end of the maintenance guarantee, the cash or certified check on deposit will be returned to the subdivider less any sums, properly documented by the Borough, which have been expended to repair or replace any unsatisfactory improvements.