The following provisions are applicable to both the Planning
Board and Zoning Board of Adjustment.
In accordance with N.J.S.A. 40:55D-53.4, for the purpose of
assuring the installation and maintenance of bondable land development
improvements, as a condition of all final site plan, subdivision,
and/or zoning permit approvals, the Board or Zoning Officer, as appropriate,
shall require, and the City Council shall accept, the following guarantees:
A. Performance guarantees.
(1)
The furnishing of a performance guarantee in favor of the City
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 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; water mains, sanitary sewers, community septic
systems, drainage structures, public improvements of open space, and
any grading necessitated by the preceding improvements. The performance
guarantee shall also cover the cost for privately owned perimeter
buffer landscaping in an approved phase or section of a development,
either as a separate guarantee or as a line item of the performance
guarantee.
(2)
The cost of the improvements covered by the performance guarantee
shall be determined by the City Engineer.
(3)
The City 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. Maintenance guarantee.
(1)
In accordance with N.J.S.A. 40:55D-53.4, developer shall post
with the municipality 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, inflow and water
quality structures within the basins, and the outflow pipes and structures
of the stormwater management system, if any, which cost shall be determined
by the Municipal Engineer.
(2)
The maintenance guarantee shall be furnished upon the inspection
and issuance of final approval of the applicable private site improvements
by the Municipal Engineer.
(3)
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.
C. Temporary certificate of occupancy guarantee.
(1)
Pursuant to N.J.S.A. 40:55D-53(1)(c), a developer shall furnish
a temporary certificate of occupancy guarantee ("TCOG") whenever the
developer seeks a temporary certificate of occupancy for a development,
unit, lot, building, or phase of development. The TCOG shall be furnished
in favor of the municipality in an amount equal to 120% of the cost
of installation of any improvements which 1) remain to be completed
or installed under the terms of the temporary certificate of occupancy;
2) are required to be completed or installed as a condition precedent
to the issuance of a permanent certification of occupancy; and 3)
are not covered by an existing performance guarantee.
(2)
The scope and amount of the TCOG shall be determined by the
Municipal Engineer.
(3)
The TCOG shall be released upon the issuance of a permanent
certificate of occupancy.
D. Safety and stabilization guarantee.
(1)
Pursuant to N.J.S.A. 40:55D-53(1)(d), a developer shall furnish
a safety and stabilization guarantee ("SSG") in favor of the municipality,
either as a separate guarantee or as a line item of the performance
guarantee.
(2)
The amount of the SSG for a development with bonded improvements
in an amount not exceeding $100,000 shall be $5,000. The amount of
the SSG 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.
(3)
The municipality shall release a separate SSG 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 pursuant
to this chapter.
(4)
An SSG shall be available to the municipality for the purposes
of returning property that has been disturbed to a safe and stable
condition, or taking other measures to protect the public from access
to an unsafe or unstable condition. An SSG shall only be available
to the municipality when:
(a)
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
(b)
Work has not recommenced within 30 days following the provision
of written notice by the municipality to the developer of the municipality's
intent to claim payment under the guarantee. A municipality shall
not provide notice of its intent to claim payment under a SSG 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. A
municipality shall provide written notice to a developer by certified
mail or other form of delivery providing evidence of receipt.
(5)
The municipality shall release an SSG upon the 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.
In the event that other governmental agencies or public utilities
will automatically 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 City for such utilities or improvements.
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 City for the reasonable cost
of the improvements not completed or corrected, and the City 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.
All improvements shall be in accordance with the design standards
of the City Code or as authorized by a design exception granted by
the reviewing board and shall be subject to inspection and approval
by the Municipal Engineer. The Municipal Engineer shall be notified
24 hours prior to the start of the various phases of the work, and
if discontinued, shall again be notified when the work will be continued.
In the event that final approval is by stages or sections of
development pursuant to Subsection a of Section 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.
To the extent that any of the improvements have been dedicated
to the City on the subdivision plat, site plan and/or zoning permit,
the municipality shall be deemed, upon the release of any performance
guarantee required hereunder, to accept dedication for public use
any improvements made thereunder, provided that such improvements
have been inspected and have received final approval by the City Engineer.
Performance and maintenance bonds: In approving the site plan,
the Planning Board shall require that the applicant furnish a performance,
maintenance, and related bonds in accordance with the requirements
of this chapter.
The modifications in this article shall be applicable to all
projects that have not received final approvals from the City Planning
Board or the City Zoning Board of Adjustment and/or which have not
posted bonds and begun construction of required improvements as of
January 16, 2018, the date of enactment of P.L. 2017, c. 312, which
obviated the City's previously lawful ordinances.