[Amended 10-4-2018 by Ord. No. 11-18]
A.
Before recording of final subdivision plats or as a condition of
final approval, the approving authority may require and shall accept
in accordance with the standards adopted by this chapter for the purpose
of assuring the installation and maintenance of on-tract improvements:
(1)
The furnishing of a performance guaranty in favor of the Borough
in an amount not to exceed 120% of the cost of installation of the
following improvements that are to be dedicated to a public entity,
and that have not yet been installed, as shown on the approved plans
or plat: 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.
(2)
In the case where an approved phase or section of a development is
privately owned, the perimeter buffer landscaping guaranty shall be
required by the Borough as a condition of permit approval. At the
developer's option, a separate performance guaranty may be posted
for the privately owned perimeter buffer landscaping. The following
forms shall be acceptable: (a) A cash value equal to 120% of the total
perimeter buffer landscaping cost; or (b) An irrevocable performance
bond in the amount of 120% of the perimeter buffer landscaping cost.
The projected cost of the perimeter buffer landscaping shall be provided
by the applicant and shall be based on an approved landscape plan
and plantings within the required landscape buffer.
(3)
The cost of the performance guaranty shall be determined by the Borough
Engineer, who shall prepare an itemized cost estimate of the improvements
covered by the performance guaranty, which itemized cost estimate
shall be appended to each performance guaranty posted by the obligor.
Said itemization shall be the basis for determining the amount of
performance guaranty and maintenance guaranty required by the approving
authority. The Borough Engineer shall forward his estimate of the
cost of improvements to the developer within 30 days of the date of
receipt of a request sent by certified mail for said estimate.
(4)
Prior to the release of a performance guaranty, the furnishing of
a maintenance guaranty in an amount not to exceed 15% of the cost
of the installation of the improvements which are being released.
(5)
Upon the inspection and issuance of final approval of the following
private site improvements by the Borough Engineer, the furnishing
of maintenance guaranty not to exceed 15% of the cost of 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.
(6)
The term of the maintenance guaranty shall be for a period not to
exceed two years and shall automatically expire at the end of the
established term.
(7)
The reviewing authority shall require that the applicant execute
such agreements and covenants as may be necessary in order to assure
the Borough that the premises shall be used in accordance with the
approval plan for the development, said agreement or covenants to
be in recordable form and to constitute covenants running with the
land. Said agreements or covenants shall be recorded prior to the
issuance of any building permit for the development and may only be
modified or released as set forth therein or by ordinance of the Borough
or as required by any other governmental agency having jurisdiction
thereover.
B.
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 guaranty, to another governmental
agency, no performance or maintenance guaranty, as the case may be,
shall be required for such utilities or improvements.
C.
Temporary certificate of occupancy.
(1)
Upon the request of a holder of a permit, the construction official
may issue a temporary certificate of occupancy for a building or structure
or part thereof before the entire work covered by the permit shall
have been complete, provided such portion or portions may be occupied
safely prior to full completion of the building or structure with
respect to public safety and welfare. Further, no temporary of final
certificate of occupancy shall be granted until all required utilities,
including but not limited to water, sewer, electric and gas, are installed
and in service.
(2)
Temporary certificate of occupancy guaranty. In the event that a
developer shall seek a temporary certificate of occupancy for a development,
unit, lot, building, or phase of development, as a condition of the
issuance thereof, the developer shall furnish a separate guaranty,
referred to herein as a temporary certificate of occupancy guaranty,
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 and which are not covered
by an existing performance guaranty. Upon 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. The scope and amount of the temporary certificate
of occupancy guaranty shall be determined by the Borough Engineer.
At no time may the Borough hold more than one guaranty or bond of
this type. The temporary certificate of occupancy guaranty shall be
released by the Borough 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. The projected cost of the temporary certificate of occupancy
guaranty shall be provided by the applicant. It shall include items
such as, but not limited to, sidewalks and street trees at the subject
property, roadways (including surface course) from the property to
the fully improved roadway; water and sewer infrastructure from the
property to the main, stormwater conveyance to serve the property,
and stormwater management structures/basins for the current project
phase. When uncompleted community facilities, such as recreation,
are to be included in the temporary certificate of occupancy guaranty,
it shall be required to the point of 50% occupancy. Each of these
items shall apply for residential and nonresidential projects requiring
a temporary certificate of occupancy.
D.
In addition to a performance guaranty required pursuant to this chapter,
a developer shall furnish to the Borough of Winslow a separate guaranty,
referred to herein as a "safety and stabilization guaranty." The amount
of a safety and stabilization guaranty for a development with bonded
improvements in an amount not exceeding $100,000 shall be $5,000.
The amount of a safety and stabilization guaranty for a development
with bonded improvements exceeding $100,000 shall be calculated as
a percentage of the bonded improvement costs of the development or
phase of development as follows: $5,000 for the first $100,000 of
bonded improvement costs, plus 2 1/2% of bonded improvement costs
in excess of $100,000 up to $1,000,000, plus 1% of bonded improvement
costs in excess of $1,000,000. The safety and stabilization guaranty
shall be available to the Borough solely 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, only in the circumstance that:
(i) site disturbance has commenced and, hereafter, all work on the
development has ceased for a period of at least 60 consecutive days
following such commencement for reasons other than force majeure,
and (ii) work has not recommenced within 30 days following the provision
of written notice by the Borough to the developer of the Borough's
intent to claim payment under the guaranty. The Borough shall not
provide notice of its intent to claim payment until a period of at
least 60 days has elapsed during which all work on the development
has ceased for reasons other than force majeure. The Borough shall
provide written notice to a developer by certified mail or other form
of delivery providing evidence of receipt. In the event that the developer
has made a cash deposit with the Borough as part of the performance
guaranty, then any partial reduction granted in the performance guaranty
shall be applied to the cash deposit in the same proportion as the
original cash deposit bears to the full amount of the performance
guaranty, provided that if the safety and stabilization guaranty is
included as a line item of the performance guaranty, the municipality
may retain cash equal to the amount of the remaining safety and stabilization
guaranty.
[Amended 10-4-2018 by Ord. No. 11-18]
The governing body shall pass a resolution either approving
or adjusting the engineer's performance guaranty estimate and
shall provide a copy of the performance guaranty estimate and resolution
to the subdivider for use in obtaining and posting a performance guaranty.
A.
The performance guaranty shall be the approved performance guaranty
estimate and a performance bond, in which the subdivider shall be
principal and an acceptable surety company licensed to do business
in the State of New Jersey, and/or cash or certified check which shall
be deposited with the Borough of Mount Ephraim by payment to the Borough
Treasurer, shall be surety. The Borough Treasurer shall issue his
receipt for such deposits and shall cause the same to be deposited
in a bank approved by the governing body in the name of the Borough
of Mount Ephraim, to be retained as security for completion of all
requirements and to be returned to the subdivider on completion of
all required work and expiration of the period of maintenance guaranty,
or, in the event of default on the part of the subdivider, to be used
by the Borough of Mount Ephraim to pay the cost and expense of obtaining
completion of all requirements. If the required improvements have
not been installed or constructed in accordance with the standards
of the Borough or within the stipulated time, the obligor and surety
for any bond shall be liable thereon to the Borough for the reasonable
costs of the improvements not completed or corrected or of the uncompleted
portions thereof, and upon authorization by the governing body the
Borough Attorney shall take the necessary steps to obtain such costs
and the Borough may, either prior to or after the receipt of the proceeds
thereof, complete such improvements. The time allowed for installation
of the improvements for which the performance guaranty has been provided
may be established by the Borough by resolution.
[Amended 10-4-2018 by Ord. No. 11-18]
B.
Ninety percent of the performance guaranty shall be in either cash,
certified check or surety bond of a bonding company approved by the
governing body. In addition to the performance guaranty, whether with
surety company or cash surety, the subdivider shall deposit cash with
the Borough of Mount Ephraim in an amount equal to 20% of the amount
of the approved performance guaranty estimate and the same shall be
paid and deposited in like manner and under the same conditions as
the security aforesaid. In the event of default, the twenty-percent
fund herein mentioned shall be first applied to the completion of
the requirements, and the cash, certified check or surety bond shall
thereafter be resorted to, if necessary, for the completion of the
requirements. The cash or surety bond may recite the foregoing provision.
The Engineer's determination that the principal has defaulted
in meeting the required standards of construction shall be binding
and conclusive upon the principal.
C.
The approved performance guaranty estimate shall fix the requirements
of maintenance of the utilities and improvements to be installed and
completed by the subdivider.
[Amended 10-4-2018 by Ord. No. 11-18]
The Borough Attorney shall notify the Secretary of the Joint
Land Use Board prior to the Joint Land Use Board meeting that the
performance guaranty is properly executed and can be added to the
agenda in the review and recommendation of the final plat by the Joint
Land Use Board.
In no case shall any paving work (including prime and seal coats)
be done without permission from the Borough Engineer prior to any
such construction so that a representative of the Borough Engineer's
office may be present at the time the work is to be done. The Borough
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:
A.
Road subgrade.
B.
Curb and gutter forms.
C.
Curbs and gutters.
D.
Road paving, after each coat in the case of priming and sealing.
E.
Drainage pipes and other drainage structures before back-filling.
F.
Shade trees and planting strips.
G.
Street name signs.
H.
Sanitary sewers and/or septic tanks.
I.
Monuments.
J.
Water mains.
[Amended 10-4-2018 by Ord. No. 11-18]
A final inspection of all improvements and utilities will be
started within 10 days of notification by the subdivider to determine
whether the work is satisfactory and in agreement with the approved
final plat drawings and the Borough specifications. The general condition
of the site shall also be considered.
Inspection by the Borough of Mount Ephraim of the installation
of improvements and utilities by the subdivider shall not operate
to subject the Borough of Mount Ephraim 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 subdivider and his contractors, if any.
[Amended 10-4-2018 by Ord. No. 11-18]
A.
When all of the bonded improvements have been completed, the obligor
shall notify the governing body, in writing, by certified mail addressed
in care of the Municipal Clerk, of the completion of said improvements
and shall send a copy thereof to the Borough Engineer. Thereupon the
Borough Engineer shall inspect all of the bonded improvements and
shall file a detailed report, in writing, with the governing body,
indicating either approval, partial approval or rejection of the bonded
improvements with a statement of reasons for any rejection. If partial
approval is indicated, the cost of the bonded improvements rejected
shall be set forth.
B.
The obligor shall reimburse the Borough for reasonable inspection
fees paid the Borough Engineer for the foregoing inspection of improvements.
C.
The developer shall post the inspection fees in escrow in an amount:
D.
If the Borough determines that the amount in escrow for the payment
of inspection fees is insufficient to cover the cost of additional
required inspections, the Borough may require the developer to deposit
additional funds in escrow provided that the Borough delivers to the
developer a written inspection escrow deposit request, signed by the
Borough Engineer, which: informs the developer of the need for additional
inspections, details the items or undertakings that require inspection,
estimates the time required for those inspections, and estimates the
cost of performing those inspections.
The governing body shall, by resolution, release or declare
in default each performance guaranty. 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 and approved by the Borough Engineer; provided,
however, that no such reduction shall be approved until the Borough
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 Borough for the reasonable
cost over and above the twenty-percent cash deposit of the improvements
not installed, and upon receipt of the proceeds thereof, the Borough
shall install such improvements. The Borough shall also have all other
remedies as may be lawfully available.
The approval of any plat under this chapter by the Joint Land
Use Board or governing body, or both, shall in no way be construed
as acceptance of any street or drainage system or any other improvement
required by this chapter, nor shall such plat approval obligate the
Borough 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:
B.
The final plat shall have been approved by the Joint Land Use Board
and the governing body.
C.
The subdivider shall have filed with the governing body a maintenance
guaranty in accordance with this chapter.[2]
[Amended 10-4-2018 by Ord. No. 11-18]
[2]
Editor's Note: Original Art. V, Administration and Enforcement, of the 1973 Borough Code and which immediately followed this subsection, consisted of the following: § 85-40, General liability insurance; § 85-41, Violations and penalties, as amended, reserved § 85-42 (previously § 85-42, Appeals, said section having been repealed 4-5-1984 by Ord. No. 467), and § 85-43, Conditional approval and variances. Said §§ 85-40, 85-41 and 85-43 were relocated to §§ 470-4, 470-13 and 470-8, respectively, of Ch. 470, Land Use Procedures, of this Code 9-7-2017 by Ord. No. 10-17 .
