[Added 7-23-2019 by Ord. No. 19-05]
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.
A.
Upon substantial completion of all required improvements, the obligor
may request of the governing body, in writing, by certified mail addressed
in care of the City Clerk, that the City Engineer prepare, in accordance
with the itemized cost estimate prepared by the City Engineer and
appended to the performance guarantee pursuant to this article, a
list of all uncompleted or unsatisfactorily completed improvements.
If such a request is made, the obligor shall send a copy of the request
to the City Engineer. The request shall indicate which improvements
have been completed and which improvements remain uncompleted in the
judgment of the obligor. Thereupon the City Engineer shall inspect
all improvements covered by the obligor's request and shall file a
detailed list and report, in writing, with the City Council, and shall
simultaneously send a copy thereof to the obligor not later than 45
days after receipt of the obligor's request.
B.
The list prepared by the City 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 City 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 Municipal Engineer
and appended to the performance guarantee pursuant to this article.
C.
The City Council, by resolution, shall either accept the improvements
determined to be complete and satisfactory by the City 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 or release to be made in the performance guarantee
relating to the improvements accepted, in accordance with the itemized
cost estimate prepared by the City Engineer and appended to the performance
guarantee pursuant to this article. This resolution shall be adopted
not later than 45 days after receipt of the list and report prepared
by the City Engineer. Upon adoption of the resolution by the City
Council, the obligor shall be released from all liability pursuant
to its performance guarantee, with respect to those accepted improvements,
except for that portion sufficient to secure completion or correction
of the improvements not yet accepted; provided that 30% of the amount
of the performance guarantee posted may be retained to ensure completion
and acceptability of all improvements. If any portion of the required
improvements is rejected, the City shall 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.
A.
The obligor shall reimburse the City for all reasonable inspection
fees paid to the City 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 $270 or 5% of the cost of improvements,
which cost shall be determined pursuant to N.J.S.A. 40:55D-53.4.
B.
If the municipality determines that the amount in escrow for the
payment of inspection fees is insufficient to cover the cost of additional
required inspections, the municipality may require the developer to
deposit additional funds in escrow.
C.
If additional funds are required, the municipality shall submit to
the developer a written inspection escrow deposit request, signed
by the Municipal Engineer, which:
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.
A.
Performance guaranties and inspections. Installation of improvements and maintenance guaranty or performance guaranty required. No final plat shall be approved by the approving authority until all items required to be bonded (on-site, off-site, on-tract and off-tract) in the public interest have been installed, inspected, certified and approved by the City Engineer and accepted by the governing body and a maintenance guaranty has been filed and accepted by the governing body in accordance with the requirements of this Code at § 250-147 et seq.
B.
Maintenance guaranty. The municipality shall also require a maintenance
guaranty in accord with 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.
A.
Repealer. Any and all ordinances inconsistent with the terms of this
article are hereby repealed to the extent of any such inconsistencies.
B.
Severability. In the event that any clause, section, paragraph or
sentence of this article is deemed to be invalid or unenforceable
for any reason, then the City Council hereby declares its intent that
the balance of this article not affected by said invalidity shall
remain in full force and effect to the extent that it allows the City
to meet the goals of this article.
C.
Effective date. This article shall take effect upon proper passage
and approval in accordance with the law.
