[Ord. No. 94-29 § 118-11A]
Before signing or recording of final subdivision plats or as
a condition of final site plan approval or as a condition to the issuance
of a zoning permit or in lieu of the installation and construction
of required improvements, an applicant shall post a performance guarantee
with the Township Clerk for the purpose of assuring the installation
and maintenance of on-tract improvements or the uncompleted portion
thereof.
a.
The furnishing of a performance guarantee in favor of the Township
shall be in an amount equal to 120% of the estimated cost of such
improvements.
b.
Where performance guarantees are required 10% of the guarantee shall
be in cash.
c.
Any performance guarantee shall be approved by the Township Attorney
as to form, content, sufficiency and execution.
d.
The cost of installation of required improvements shall be determined
by the Township Engineer.
e.
Improvements covered under a performance guarantee shall at a minimum
include: streets, grading, pavement, gutters, curbs, sidewalks, street
lighting, shade trees, street signs, traffic signs, markings, signals,
bulkheads, surveyor's monuments, culverts, storm sewers, drainage
structures, parking facilities, erosion control measures and sedimentation
devices, public improvements of open space and, in the case of site
plans only, other on-site improvements and landscaping.
f.
The Township Engineer shall prepare an itemized estimate of the cost
of installation of improvements covered by any performance guarantee,
which itemized cost estimate shall be appended to each performance
guarantee posted by an applicant with the Township Clerk.
[Ord. No. 94-29 § 118-11B]
a.
In the event that conditions of the guarantees are not performed
by the principals within the time required for performance under the
terms of the guarantee, the Township shall have the right, in its
sole discretion, after recommendation by the Township Engineer, to
use all or any portion of the cash guarantee to complete, install
or repair such requirements, in part or in whole, and, upon completion
of same, account to the principals for the cost of same and pay over
to the principals, upon such completion of such requirements, any
balance of moneys remaining, provided that all other conditions of
the guarantee have been performed.
b.
The use of all or part of the cash guarantee shall in no way be deemed
to constitute a waiver of any other rights the Township may have under
other guarantees delivered to the Township to ensure performance.
c.
All cash guarantees required herein shall be invested by the Township
in interest-bearing accounts in the name of the Township, and the
interest earned shall accrue to the benefit of the applicant.
[Ord. No. 94-29 § 118-11C]
a.
Performance guarantees shall run for a period of three years.
b.
The time allowed for installation of the 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 Township Engineer
according to the method of calculation set forth herein as of the
time of the passage of the resolution.
c.
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 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."
[Ord. No. 94-29 § 94-29
§ 118-11D; Ord. No. 01-21-OAB § 16]
a.
As a condition of release or partial release of a performance guarantee
the applicant shall post a maintenance guarantee with the Township
Clerk.
b.
Maintenance guarantees shall run for a period of two years from the
date of final acceptance of any improvements, with the exception of
stormwater maintenance guarantees associated with development in the
Pinelands Area of the Township which shall run for a period of four
years from the date of final acceptance of any improvement.
c.
All maintenance guarantees shall be in the amount of 15% of the estimated
cost of improvements as set forth in the performance guarantee.
d.
An applicant may provide, at his/her option, some or all of any required
maintenance guarantee in cash.
[Ord. No. 94-29 § 118-11E; Ord. No. 04-32-OAB § 1]
Except for the cash guarantee portion of any performance guarantee,
performance or maintenance guarantees shall be in the form of cash,
a bond from a surety company licensed in the State of New Jersey or
an irrevocable letter of credit. All performance or maintenance guarantees
or irrevocable letters of credit shall be in the form adopted by the
Department of Community Affairs pursuant to N.J.A.C. 5:39-1.
[Ord. No. 94-29 § 118-11F]
a.
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 Township Council 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 35-41.1, 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 Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Township 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 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 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 Engineer and appended
to the performance guarantee.
c.
The Township Council, by resolution, shall either approve the improvements
determined to be complete and satisfactory by the 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 Engineer and appended to the performance guarantee.
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 Township Council 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.
d.
If the Engineer fails to send or provide the list and report as requested
by the obligor 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 Township Council fails to approve or reject the improvements
determined by the 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 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; and the cost of applying to the court,
including reasonable attorney's fees, may be awarded to the prevailing
party.
e.
In the event that the obligor has made a cash deposit with the Township
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.
f.
If any portion of the required 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 municipal engineer.
[Ord. No. 94-29 § 118-11G]
Prior to release of the performance guarantee, the applicant
shall file with the Township Engineer as-built drawings to such scale
as required by the Township Engineer, accurately showing the location,
profile, size and appurtenances of all required improvements constructed
within the project. Upon the approval of the improvements by the Township
Engineer, stating "I hereby certify that I have inspected all of the
improvements required to be installed by ________________ in the project
known as ________________ which are covered by ________________ (Bond
No. ________), and I certify that all improvements required and covered
by the guarantee have been installed in accordance with specifications
of the Township of Berkeley and to my satisfaction," the performance
guarantee shall be released upon the posting of a maintenance guarantee
in the amount of 15% of the actual costs of the required improvements,
the maintenance guarantee to run for a period of two years from the
date of the Township Engineer's certificate.
[Ord. No. 94-29 § 118-11H]
No certificate of occupancy shall be issued for any dwelling
upon a lot fronting on any street within a development or approved
section thereof until the Township Engineer certifies that all improvements
required hereunder applicable to such lot, including adequate access,
have been installed to his satisfaction, including the surface course
on the fronting street on which the lot is located. All utility mains
and service connections shall be installed before the surface course
is placed. The Township Council may waive the requirement that all
improvements be installed prior to the issuing of a certificate of
occupancy and authorize the issuance of a certificate of occupancy,
notwithstanding the lack of installation of such improvements, provided
that the subdivider files with the Township Clerk a list certified
by the Township Engineer, specifying the improvements not installed,
the exact date, including the month and day and year, by which the
improvements shall be installed and the particular lots for which
such certificates of occupancy are requested, whereupon the Township
Council may authorize the granting of certificates of occupancy during
a period not exceeding four months from the date of the Engineer's
certification without installing such improvements, provided further
that no such waivers shall be granted for street signs and seeding;
and in any event, the applicant shall in no way be absolved or relieved
of the obligation or responsibility to prevent soil erosion. The Construction
Official shall be charged with the responsibility of reviewing and
enforcing the expiration dates of waivers. In the event that a waiver
has expired without the applicant complying with the provisions of
the waiver, the Construction Official shall so notify the Township
Council for its appropriate action. In the event that certificates
of occupancy are applied for in any situation in which all improvements
have not been completed, the applicant shall provide, prior to the
issuance of such certificates of occupancy, a letter in form satisfactory
to the Township Council and signed by the purchaser of the lot from
the applicant, setting forth that the purchaser understands that the
completion of the improvements is the responsibility of the applicant
and that the Township has not accepted the improvements but is relying
upon a bond provided by the applicant to the Township, together with
a written release and hold harmless agreement, in a form satisfactory
to the Township Council relieving the Township from any and all claims
that the applicant and purchaser may have against the Township as
a result of the authorization to issue certificates of occupancy prior
to the installation of all the required improvements as set forth
here and above. An application for a waiver, as provided for in this
subsection, shall be accompanied by a nonrefundable fee, payable to
the Township of Berkeley, in the amount of $180.
[Ord. No. 94-29 § 118-11I]
[Ord. No. 03-45-OAB § 1]
a.
Maintenance of On-Tract Improvements — Developer/Landowner
Responsibility. During the course of development of a tract and construction
of improvements, the developer/landowner shall be responsible to insure
the safety and proper, on-going maintenance of the facilities and
improvements on the tract. The performance guarantee as required by
these development regulations and N.J.S. 40:55D-53 are posted to insure
the proper installation and maintenance during the performance period,
of all improvements installed by the developer/landowner in accordance
with the approved plans, specifications and any amendments thereto
required for approval of the development by the Planning Board/Board
of Adjustment. All on-tract improvements shall be maintained by the
developer/landowner as a condition of continued development, use and
occupancy of the property. On-tract drainage facilities, including
detention and/or retention basins, shall be maintained by the developer/landowner
unless accepted by the municipality at the satisfactory termination
of the performance period. All drainage ways or drainage structures
shall be contained within the drainage easement to permit access by
municipal maintenance personnel for inspections of the facilities
and for emergency repair of such drainage facilities. Said easements
or emergency repair shall not be deemed or in any way construed that
the municipality is accepting a dedication or responsible for the
maintenance of the drainage facilities.
b.
Snow Removal — Salting/Sanding. Until such time as the privately
owned, on-tract improvements installed by the developer have been
accepted into Township ownership as set forth in these development
regulations or deeded and turned over to a private homeowners' association,
the developer/landowner shall be responsible for the removal of snow
and sanding or salting of streets, roadways and other areas or rights-of-way
for passage.
c.
Performance Guarantee Period. During the time period when the developer/landowner
is constructing improvements (performance guarantee period), the developer/landowner
shall remove all snow, and salt and/or sand the roadway, street and
right-of-way areas within the tract to insure safe passage by all
persons and vehicles. Failure to fulfill such responsibility shall
be deemed a breach and default of the performance guarantee. If the
Township, in the sole discretion of its agents and employees, determine
that the health, safety or welfare of persons or property may be affected
by the breach of responsibility and performance by the developer/landowner,
the Township in such emergency situation shall be authorized to plow
and remove snow and sand and/or salt the road, street or right-of-way
areas within the development. All costs incurred in the emergency
action undertaken by the Township shall be charged against and deducted
from the performance guarantee posted by the developer/landowner as
a default of their responsibility and obligations to perform under
the guarantee. Any such emergency action by the Township shall not
be construed as undertaking of any of the developer/landowner's continued
obligations or responsibilities; and shall further not be deemed or
construed as an acceptance of any proposed dedication of the improvement.
The developer/landowner shall indemnify and hold the Township harmless
for any damages or injuries to persons or property of the developer,
the Township, or others resulting from such emergency action, and
such damages shall likewise be charged against and deducted from the
performance guarantee.
d.
Billing. The Township Public Works Department shall keep detailed
records of the time, materials, equipment and men utilized for such
services within the developer/landowner's tract and same shall be
submitted to the chief financial officer for billing the cost of such
snowplowing, sanding or salting at the current rate established by
resolution for such services by the Township Public Works Department
and on file in the Municipal Clerk's office. The Township chief financial
officer shall forward the bill for services to the developer/landowner
indicating the deduction to be made from the performance guarantee.
[Ord. No. 94-29 § 118-11.1]
a.
All improvements shall be subject to an inspection and approval by
the Township Engineer, who shall be notified by the developer at least
48 hours prior to the start of any construction. The developer shall
not begin installation of any improvements until approval is received
from the Township Engineer. No underground installation shall be covered
until inspected and approved. The cost of all improvements shall be
borne by the subdivider.
b.
Inspection Fees; Filing Fees; Cash Performance Guarantees.
1.
Prior to the signing of a final plat and prior to the issuance of
any building permit or the commencement of any construction, the applicant
shall deposit with the Township Clerk inspection fees as hereinafter
provided. The Township Engineer or his designee shall estimate the
costs of all improvements to cover the costs of engineering services,
including inspections and reinspections and other work necessitated
by the development of land covered by the approved plat. The costs
of all inspections shall be the responsibility of the developer. The
inspection fee shall be in addition to the amount of any required
performance or maintenance guarantee and shall consist of a sum equal
to the following:
|
Total Cost of Improvements
|
Anticipated Inspection Fees
|
|---|---|
|
$0 to $50,000
|
10% of the amount; minimum fee of $500
|
|
$50,001 to $100,000
|
$5,000 plus 9% of the amount in excess of $50,000
|
|
$100,001 to $250,000
|
$9,500 plus 8% of the amount in excess of $100,000
|
|
More than $250,000
|
$21,500 plus 7% of the amount in excess of $250,000
|
2.
This fee shall be held in escrow by the Township. Any excess moneys
shall be remitted to the developer upon approval of all improvements
as provided for herein. Any additional inspection costs shall be paid
by the developer prior to the approval of the improvements by the
Governing Body as provided for herein.
3.
Escrow deposits for anticipated inspection fees.
(a)
The developer shall reimburse the municipality for all reasonable
inspection fees paid to the municipal engineer for the inspection
of improvements. The municipality shall require from the developer
deposits for the inspection fees, to be placed in escrow accounts,
as follows:
(1)
The greater of $500 or 5% of the cost of improvements, which
costs shall be determined by the municipal engineer pursuant to N.J.S.A.
44:55D-53.4.
(2)
In lieu of (1) above, 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 to
be deposited by the developer shall be 50% of the reasonably anticipated
fees.
(3)
In lieu of (1) above, 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 the developer shall be 25% of the reasonably anticipated fees.
4.
Replenishment of escrow account.
(a)
For those developments for which the reasonably anticipated
fees are less than $10,000 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 deposit the remaining
50% of the anticipated inspection fees.
(b)
For those developments for which the reasonably anticipated
fees are $10,000 or greater, 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.
(c)
The municipal engineer shall not perform any inspections if
sufficient funds to pay for those inspections are not on deposit.
In addition, no performance guarantees shall be released and no new
building permits or certificates of occupancy shall be reviewed or
approved for issuance until the escrow account has been fully replenished.
c.
In the event that the final approval of the development has been
granted in stages or sections and hence the construction of the required
improvements is to be completed in stages or sections, bonding and
inspection of improvements shall also be in stages or sections.
d.
The minimum inspection cost shall be $500.
e.
Whenever fees and cash deposits for performance guarantees paid hereunder
shall exceed $5,000, the fees and cash deposits so posted shall be
deposited in a banking institution or savings and loan association
in the State insured by an agency of the Federal government or any
other fund or depository approved for such deposits by the State of
New Jersey in an interest-bearing account at the minimum rate currently
paid by the institution on time or savings deposits, etc. on an annual
basis or at the time the deposit is repaid or applied for the purpose
it was deposited; provided, however, that the Township shall retain
for administrative expenses a sum equivalent to no more than 33 1/3%
of the entire amount, which shall be in lieu of other administrative
and custodial expenses. In the event that the interest paid on the
deposit for a year does not exceed $100, the same is to be retained
by the Township for the costs.
[Ord. No. 94-29 § 118-11.2]
Upon receipt of final approval, the applicant shall deposit with the Board Secretary the required Tax Map maintenance fee as set forth in Article VI. No construction permit shall be issued in connection with such subdivision approval unless such cost shall have been posted with the Board Secretary in accordance with this section. The amount posted by the applicant shall be placed by the Township Treasurer in an escrow account, and that portion of the estimated cost which remains unused after the Tax Map has been revised shall be refunded to the applicant.
