As a condition to the approval of a site plan, the Planning
Board may require the dedication of an additional right-of-way in
accordance with the Master Plan adopted by the Mayor and Council or
an Official Borough Map adopted by the Mayor and Council. On an existing
road, the additional right-of-way shall be that portion of the site
which abuts a road and which lies between the existing right-of-way
and the proposed future right-of-way line for the road as set forth
on the duly adopted Borough Master Plan or Official Borough Map. However,
where the proposed future right-of-way lines for the existing county
road are drawn so that the total additional right-of-way is to be
secured from just one side of the road, only 1/2 of that additional
right-of-way shall be required to be dedicated as a condition to the
approval of the site plan. Also, the Planning Board may require the
reservation of the remaining area of future right-of-way for future
acquisition. The building setback line shall be measured from the
future right-of-way line. In order to effect dedications required
by this section, a deed for such lands shall be furnished to the Borough
in a form approved by the Borough Attorney.
[Amended 12-8-1993 by Ord. No. 93:19]
A.Â
As a condition of final site plan approval, the Planning Board may
require and shall accept, for the purpose of assuring the installation
and maintenance of on-tract improvements:
(1)Â
The furnishings of a performance guarantee in favor of the Borough
in an amount not to exceed 120% of the cost of installation, which
cost shall be determined by the Borough Engineer according to the
method of calculation set forth in N.J.S.A. 40:55D-53.4, or any amendatory
statute thereto, for improvements which the Planning Board 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 other on-site improvements and landscaping. 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.
(2)Â
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 Borough 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 Borough for such utilities or improvements.
B.Â
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 Borough Engineer
according to the method of calculation set forth in N.J.S.A. 40:55D-53
as of the time of the passage of the resolution.
C.Â
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 Borough for the reasonable cost of the improvements
not completed or corrected, and the Borough may, either prior to or
after 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. The obligor shall also be liable for reasonable
attorney fees incurred to enforce a performance guaranty.
[Amended 1-12-1994 by Ord. No. 93:20]
D.Â
The performance and maintenance guarantees shall be approved by the
governing body, upon the advice of the Borough Attorney as to form,
sufficiency and execution.
[Amended 12-8-1993 by Ord. No. 93:19]
A.Â
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 Borough Clerk, that the Borough Engineer prepare, in accordance
with the itemized cost estimate prepared by the Borough Engineer and
appended to the performance guarantee, 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.
Thereupon the Borough Engineer shall inspect all improvements covered
by the 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.
B.Â
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 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 Borough 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 Borough Engineer and
appended to the performance guarantee.
C.Â
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. 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 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 performance
guarantee posted may be retained to ensure completion of all acceptability
of all improvements.
D.Â
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 on the performance guarantee pursuant
to this section 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.
E.Â
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.
F.Â
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 Borough may require of the developer
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. For those developments for which the reasonably anticipated
fees are less than $10,000, fees may, at the option of the developer,
be paid in two installments. The initial amount deposited by a developer
shall be 50% of the reasonably anticipated fees. When the balance
on deposit drops to 10% of the reasonably anticipated fees because
the amount deposited by the developer has been reduced by the amount
paid to the Borough Engineer for inspection, the developer shall deposit
the remaining 50% of the anticipated inspection fees. For those developments
for which the reasonably anticipated fees are $10,000 or greater,
fees may, at the option of the developer, be paid in four installments.
The initial amount deposited by a developer shall be 25% of the reasonably
anticipated fees. When the balance on deposit drops to 10% of the
reasonably anticipated 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 reasonably
anticipated fees. The Borough Engineer shall not perform any inspection
if sufficient funds to pay for those inspections are not on deposit.
G.Â
In the event that final approval is by stages or sections of development
pursuant to N.J.S.A. 40:55D-38, the provisions of this section shall
be applied by stage or section.
H.Â
To the extent that any of the improvements have been dedicated to
the Borough on the subdivision plat or site plan, the governing body
shall be deemed, upon the release of any performance guarantee required
pursuant to 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 Borough Engineer.
[Added 12-8-1993 by Ord. No. 93:19]
The approving authority shall accept a performance guarantee
or maintenance guarantee which is an irrevocable letter of credit
if it:
A.Â
Constitutes an unconditional payment obligation of the issuer running
solely to the Borough for an express initial period of time in the
amount determined pursuant to N.J.S.A. 40:55D-53;
B.Â
Is issued by a banking or savings institution authorized to do and
doing business in the State of New Jersey;
C.Â
Is for a period of time at least one year; and
D.Â
Permits 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 30 days or more in advance of the expiration
date of the letter of credit or such longer period in advance thereof
as is stated in the letter of credit.
In instances where the provisions of this Part 2 allow or require
a cash contribution to the Borough to cover a share of the cost of
all improvements, the approval of a site plan shall be further conditioned
on the receipt of such contribution in the form of a certified check
made out to the Borough of Somerdale and deposited in an account reserved
for such improvements.
