[Amended by Ord. No. 7-93]
A.
All improvements required by this chapter shall be installed under
the supervision and inspection of the Township Engineer prior to execution
of a final subdivision plat or site plan plat or as a condition of
final subdivision or final site plan approval, or in lieu thereof,
the developer may elect to post an adequate performance guarantee
to ensure the installation of these required improvements; provided,
however, that no such performance guarantee shall be considered filed
or accepted for filing with the Township Clerk unless and until the
following conditions are met:
(1)
The Township Engineer shall have determined the cost of installation of improvements according to the method of calculation set forth in § 600-100 and certified, in writing, to the Planning Board that the amount thereof is sufficient to ensure the completion of the improvements.
(2)
The Township Attorney shall have approved the sufficiency of form
and execution of the performance guarantee.
(3)
The Township Council shall have approved the qualifications of the
surety and stipulated the duration of the guarantee.
B.
No building permits in a subdivision or site plan or approved section
thereof shall be issued until:
(1)
Final
approval by the Planning Board of the final plat and the plat has
been properly filed with the County Clerk within the time or extended
time required by N.J.S.A. 40:55D-54 (proof of filing shall be submitted
to the Planning Board Secretary); and
C.
Where an approved preliminary subdivision or site plan is divided
into two or more sections for the purpose of obtaining final approval
of a portion of the preliminary subdivision or site plan, before consideration
of a final subdivision or site plan on a second or subsequent section
of the same preliminary subdivision or site plan, the developer shall
have installed all deferred improvements in any prior sections, including,
but not limited to, wearing course of streets, sidewalks, and shade
trees and shall have cleaned up all debris that may have resulted
from the building activity so as to place the section of the subdivision
or site plan in question in a finished condition acceptable to the
Township. Upon written notice from the developer, the Township Engineer
shall make an inspection of the section in question and shall file
a written report to the Planning Board concerning the acceptability
of the section.
D.
All on-site improvements for site plans, as required in this article, shall be installed prior to the issuance of a certificate of occupancy, provided that the Township Engineer may recommend the issuance of a certificate of occupancy prior to completion of those improvements set forth in Subsection C.
[Amended by Ord. No. 16-92]
All on-site improvements for site plans, as required in this
article, shall be installed prior to the issuance of a certificate
of occupancy.[1]
[1]
Editor's Note: Former Section 19-4.903, Certification of Township
Engineer, which previously followed this section, was repealed by
Ord. No. 16-92.
[Amended by Ord. No. 7-80; Ord. No. 4-84; Ord. No. 7-93]
The performance guarantee for the installation of those improvements required shall be in favor of the Township in an amount equal to 120% of the cost of such improvements as determined by the Township Engineer in accordance with the method of calculation set forth in § 600-100, the Township 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. At least 10% of the performance guarantee shall be in the form of cash or a certified check made payable to the Township.
A.
The performance guarantee shall run for a term not to exceed 18 months from the date of final approval. With the consent of the principal, the performance guarantee may be extended by the governing body, after the recommendation by the Planning Board by resolution for an additional period not exceeding 18 months 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 Township Engineer as of the time of the passage of the resolution, in accordance with the method of calculation set forth in § 600-100.
B.
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 Township for the reasonable cost of the improvements
not completed or corrected and the Township 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.).
C.
Incomplete or unsatisfactory improvements:
(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 Township Clerk, that the Township Engineer prepare, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to Subsection A, 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 Township Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon, the Township 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.
(2)
The list prepared by the Township 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 Township 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 Township Engineer and appended to the performance guarantee pursuant to Subsection A.
D.
Release of performance guarantee.
(1)
The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Township 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 Township Engineer and appended to the performance guarantee pursuant to Subsection A. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution of 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 and acceptability of all improvements.
(2)
Failure to act.
(a)
If the Township Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection D within 45 days from receipt of the request, the obligor may apply to the Court in a summary manner for an order compelling the Township Engineer to provide the list and report within a stated time and the cost of applying to the Court, including reasonable attorneys' fees, may be awarded to the prevailing party.
(b)
If the governing body fails to approve or reject the improvements determined by the Township 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 Township 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 Township Engineer and appended to the performance guarantee pursuant to Subsection A; and the cost of applying to the Court, including reasonable attorneys' 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 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.
If any portion of the required improvements is rejected, the governing
body 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.
The obligor shall reimburse the municipality for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements; provided that the municipality 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 § 600-100. 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 Township 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 municipal engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Township Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.
G.
In the event that final approval is by stages or sections of development pursuant to § 600-94B of this chapter, the provisions of this section shall be applied by stage or section.
H.
The governing body shall, for the purposes of this section, accept
a performance guarantee which is an irrevocable letter of credit if
it:
(1)
Constitutes an unconditional payment obligation of the issuer running solely to the Township for an express initial period of time in the amount determined pursuant to § 600-99;
(2)
Is issued by a financially stable banking or savings institution
authorized to do and doing business in this state;
(3)
Is for a period of time of at least one year; and
(4)
Permits the Township 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.
I.
To the extent that any of the improvements have been dedicated to
the Township of 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 Township Engineer.
[Amended by Ord. No. 16-92; Ord. No. 7-93]
The cost of the installation of improvements for the purposes of § 600-99 shall be estimated by the Township Engineer based on documented construction costs for public improvements prevailing in the general area of the Township of Denville. The developer may appeal the Township Engineer's estimate to the governing body. The governing body shall decide the appeal within 45 days of receipt of the appeal in writing by the Municipal Clerk. After the developer posts a guarantee with the Township based on the cost of the installation of improvements as determined by the governing body, he may institute legal action within one year of the posting in order to preserve the right to a judicial determination as to the fairness and reasonableness of the amount of the guarantee.
[Amended by Ord. No. 16-92]
A.
Provisions shall be made by the applicant for a maintenance guarantee to be posted with the governing body for a period not to exceed two years after final acceptance of the improvements in an amount not to exceed 15% of the cost of the improvements, which cost shall be determined by the Township Engineer according to the method of calculation set forth in § 600-100. 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. The Township Engineer and the Planning Board shall review the maintenance bond; it shall be reviewed by the Township Attorney as to form sufficiency and execution and approved by the governing body.
B.
The governing body shall, for the purpose of this section, accept
a maintenance guarantee which is an irrevocable letter of credit if
it:
(1)
Constitutes an unconditional payment obligation of the issuer running solely to the Township for an express initial period of time in the amount determined pursuant to Subsection A;
(2)
Is issued by a financially stable banking or savings institution
authorized to do and doing business in this state;
(3)
Is for a period of time of at least one year; and
(4)
Permits the Township 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 stated in the letter of credit.
C.
The applicant may, at his option, provide some or all of the maintenance
guarantee in cash.
[Amended by Ord. No. 9-81]
All improvements required by the Planning Board, except electric
and gas, shall be installed under the supervision and inspection of
the Township Engineer. Prior to the commencement of construction,
the applicant and/or contractor shall arrange with the Township Engineer
for a pre-construction meeting for the purpose of reviewing the construction
details and scheduling as well as establishing a liaison with the
Township Engineer's office. No construction work covering the required
improvements shall be commenced without the developer first notifying
the Township Engineer that said construction work is about to take
place. Such notice shall be given in writing to the Township Engineer
at least one week before commencement of such work. The inspection
by the Township Engineer shall be made within 48 hours after receipt
of the notification of the completion of work, weekends and holidays
excluded. No required improvements shall be covered until inspected
and approved by the Township Engineer.
