[Added 6-11-2019 by Ord. No. O-19-019]
A.
Before filing of final subdivision plats or recording of minor subdivision deeds or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to Subsection d. of § 52 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-65), the Township of Montclair may require and shall accept in accordance with the standards adopted by ordinance and regulations adopted pursuant to § 1 of P.L. 1999, c. 68 (N.J.S.A. 40:55D-53a) for the purpose of assuring the installation and maintenance of certain on tract improvements, the furnishing of a performance guarantee, and provision for a maintenance guarantee in accordance with Subsection A(1) and (2).
(1)
Performance guarantee.
(a)
The developer shall furnish a performance guarantee in favor
of the Township of Montclair in an amount not to exceed 120% of the
cost of installation of only those improvements required by an approval
or developer's agreement, ordinance, or regulation to be dedicated
to a public entity, and that have not yet been installed, which cost
shall be determined by the Board or Municipal Engineer, as appropriate,
according to the method of calculation set forth in § 15
of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4), for the following improvements
as shown on the approved plans or plat; streets, pavement, gutters,
curbs, sidewalks, street lighting, street trees, surveyor's monuments,
as shown on the final map and required by the "Map Filing Law," P.L.
1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.; repealed by § 2
of P.L. 2011, c. 217) or N.J.S.A. 46:26B-1 through 8, water mains,
sanitary sewers, community septic systems, drainage structures, public
improvements of open space, and any grading necessitated by the preceding
improvements. The Board or 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.
(b)
The Township of Montclair may also require a performance guarantee
to include, within an approved phase or section of a development,
privately-owned perimeter buffer landscaping, as required by local
ordinance or imposed as a condition of approval. At the developer's
option, a separate performance guarantee may be posted for the privately-owned
perimeter buffer landscaping.
(c)
In the event that the 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 guarantee, referred to herein as a "temporary certificate of occupancy guarantee," in favor of the Township of Montclair 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 guarantee. Upon posting of a temporary certificate of occupancy guarantee, all sums remaining under a performance guarantee, required pursuant to Subsection A(1)(a), 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 guarantee shall be determined by the Zoning Officer. At no time may a municipality hold more than one guarantee or bond of any type with respect to the same line item. The "temporary certificate of occupancy guarantee" shall be released by the Zoning Officer 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.
(d)
A developer shall furnish to the municipality a safety and stabilization
guarantee, in favor of the Township of Montclair. At the developer's
option, a safety and stabilization guarantee may be furnished either
as a separate guarantee or as a line item of the performance guarantee.
A safety and stabilization guarantee shall be available to the Township
of Montclair 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:
[1]
Site disturbance has commenced and, thereafter, 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
[2]
Work has not recommenced within 30 days following the provision
of written notice by the Township of Montclair to the developer of
the municipality's intent to claim payment under the guarantee. The
Township shall not provide notice of its intent to claim payment under
a safety and stabilization guarantee 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 Township shall provide written
notice to a developer by certified mail or other form of delivery
providing evidence of receipt. The amount of a safety and stabilization
guarantee for a development with bonded improvements in an amount
not exceeding $100,000 shall be $5,000. The amount of a safety and
stabilization guarantee 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 Township
shall release a separate safety and stabilization guarantee to a developer
upon the developer's furnishing of a performance guarantee which includes
a line item for safety and stabilization in the amount required under
this paragraph. The Township shall release a safety and stabilization
guarantee upon the Board or Municipal Engineer's determination that
the development of the project site has reached a point that the improvements
installed are adequate to avoid any potential threat to public safety.
(2)
Maintenance guarantee.
(a)
The developer shall post with the Township of Montclair, prior to the release of a performance guarantee required pursuant to Subsection A(1)(a), A(1)(b), or both Subsection A(1)(a) and (b), a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.
(b)
The developer shall post with the Township, upon the inspection
and issuance of final approval of the following private site improvements
by the Board or Municipal Engineer, a maintenance guarantee in an
amount not to exceed 15% of the cost of the installation of the following
private site improvements: stormwater management basins, in-flow and
water quality structures within the basins, and the out-flow pipes
and structures of the stormwater management system, if any, which
cost shall be determined according to the method of calculation set
forth in § 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).
(c)
The term of the maintenance guarantee shall be for a period
not to exceed two years and shall automatically expire at the end
of the established term.
(3)
In the event that other governmental agencies or public utilities
are or will be the owner of 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 Township for such utilities or improvements.
B.
The time allowed for installation of the bonded 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 Board or Municipal Engineer according to the method of calculation
set forth in § 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4)
as of the time of the passage of the resolution.
C.
If the required bonded 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 of Montclair 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," P.L. 1971, c. 198 (N.J.S.A. 40A:11-1
et seq.).
D.
Closing procedures.
(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 Board or Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Board or Municipal Engineer and appended to the performance guarantee pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactory completed bonded improvements. If such a request is made, the obligor shall send a copy of the request to the Board or Municipal Engineer. The request shall indicate which bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon the Board or Municipal Engineer shall inspect all bonded 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 Board or Municipal Engineer shall state, in detail, with respect to each bonded 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 bonded improvement determined to be unsatisfactory. The report prepared by the municipal engineer shall identify each bonded 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 bonded improvement, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the performance guarantee pursuant to Subsection A of this section.
E.
Procedures.
(1)
The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Board or Municipal Engineer, or reject any or all of these bonded 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 engineer and appended to the performance guarantee pursuant to Subsection A of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the 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 bonded 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 and "safety and stabilization guarantee" posted may be retained to ensure completion and acceptability of all improvements. The safety and stabilization guarantee shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction. For the purpose of releasing the obligor from liability pursuant to its performance guarantee the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the engineer and appended to the performance guarantee pursuant to Subsection A of this section, including any contingency factor applied to the cost of installation. If the sum of the approved bonded 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 and safety and stabilization guarantees to ensure completion and acceptability of bonded improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a temporary certificate of occupancy guarantee has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the municipality below 30%.
(2)
If the Board or 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 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 bonded 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 engineer and appended to the performance guarantee pursuant to Subsection A 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, provided that if the developer has furnished
a safety and stabilization guarantee, the municipality may retain
cash equal to the amount of the remaining safety and stabilization
guarantee.
F.
If any portion of the required bonded 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 Board or Municipal Engineer.
H.
Inspection fees.
(1)
The obligor shall reimburse the municipality for reasonable inspection fees paid to the engineer for the foregoing inspection of improvements; which fees shall not exceed the sum of the amounts set forth in Subsection H(1)(a) and (b). The municipality may require the developer to post the inspection fees in escrow in an amount:
(2)
For those developments for which the inspection fees total less than
$10,000, fees may, at the option of the developer, be paid in two
installments. The initial amount deposited in escrow by a developer
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
developer has been reduced by the amount paid to the municipal engineer
for inspections, the developer shall deposit the remaining 50% of
the inspection fees.
(3)
For those developments for which the inspection fees total $10,000
or greater, fees may, at the option of the developer, be paid in four
installments. The initial amount deposited in escrow by a developer
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
developer has been reduced by the amount paid to the municipal engineer
for inspection, the developer shall make additional deposits of 25%
of the inspection fees.
(4)
If the municipality determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsection H(1)(a) and (b), is insufficient to cover the cost of additional required inspections, the municipality may require the developer to deposit additional funds in escrow provided that the municipality delivers to the developer a written inspection escrow deposit request, signed by the municipal 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.
I.
In the event that final approval is by stages or sections of development
pursuant to Subsection a of § 29 of P.L. 1975, c. 291 (N.J.S.A.
40:55D-38), 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 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. (cf: P.L. 2013, c. 123, § 3).
