[Amended in entirety 6-12-2018 by Ord. No. 18-16; Prior history includes Ord. No. 80-1]
With respect to all applications for subdivision and site plan
approval, the Borough of Hillsdale Planning Board shall condition
any such approval upon the execution of a developer's agreement between
the Borough of Hillsdale Planning Board (the "Board") and the applicant
specifying, in part, off-site, on-tract or off-tract improvements,
public improvements, bonding requirements, escrow requirements, other
conditions imposed by the Borough and such other terms and conditions
as the Borough deems appropriate. The Board may waive the requirement
of a developer's agreement in appropriate circumstances. Unless so
waived, no certificate of occupancy or building permit shall be issued
respecting any application for development requiring subdivision or
site plan approval unless the applicant has entered into a developer's
agreement of a form specified herein.
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 Section
52 of P.L. 1975, c. 291 (C.40:55D-65), or as a condition of approval
of a permit update under the State Uniform Construction Code for the
purpose of updating the name and address of the owner of property
on a construction permit, the Borough shall require and shall accept
in accordance with the standards set forth hereinbelow and regulations
adopted pursuant to Section 1 of P.L. 1999, c. 68 (C. 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 as set forth in this section.
(1)
The developer shall furnish a performance guarantee in favor
of the Borough 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 Borough Engineer, according to the method of calculation set
forth in Section 15 of P.L. 1991, c. 256 (C. 40:55D-53.4), for the
following improvements as shown on the approved plans or plat:
(a)
Streets.
(b)
Pavement.
(c)
Gutters.
(d)
Curbs.
(e)
Sidewalks.
(f)
Street lighting.
(g)
Street trees.
(h)
Surveyor's monuments, as shown on the final map and required
by "the map filing law," P.L. 1960, c. 141 (C. 46:23-9.9 et seq.;
repealed by Section 2 of P.L. 2011, C. 217) or N.J.S.A. 46:26B-1 through
N.J.S.A. 46:26B-8.
(i)
Water mains.
(j)
Sanitary sewers.
(k)
Community septic systems.
(l)
Drainage structures.
(m)
Public improvements of open space; and
(n)
Any grading necessitated by the preceding improvements.
(2)
The developer shall also furnish a performance guarantee to
include, within an approved phase or section of a development, privately-owned
perimeter buffer landscaping, as required by the Borough Code or imposed
as a condition of approval. At a developer's option, a separate performance
guarantee may be posted for the privately-held perimeter buffer landscaping.
(3)
The Borough 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.
A.
The developer shall also furnish to the Borough a "safety and stabilization
guarantee" in favor of the Borough. 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 Borough 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.
(2)
Work has not recommenced within 30 days following the provision
of written notice by the Borough to the developer of the Borough's
intent to claim payment under the guarantee.
(3)
The Borough 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 Borough shall
provide written notice to the developer by certified mail or other
form of delivery providing evidence of receipt.
(4)
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.
(5)
The amount of a "safety and stabilization bond 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:
(6)
The Borough 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.
(7)
The Borough shall release a "safety and stabilization guarantee"
upon the Borough Engineer's or other municipal official's (designated
by ordinance) 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.
A.
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 Borough 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
previously furnished by the developer 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 Borough Engineer or such other municipal official
designated by ordinance. The "temporary certificate of occupancy guarantee"
shall be released by the Borough Engineer or other municipal official
designated by ordinance 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.
A.
The Borough may accept a performance guarantee in favor of the municipality
from a successor developer as a replacement for a performance guarantee
that was previously furnished, pursuant to section 41 of P.L. 1975,
c.291 (C.40:55D-53), for the purpose of assuring the installation
of improvements. The Borough shall not accept a replacement performance
guarantee without securing:
(1)
written confirmation from the new obligor that the intent of
the new obligor is to furnish a replacement performance guarantee,
relieving the predecessor obligor and surety, if any, of any obligation
to install improvements, and
(2)
written verification from the Borough engineer that the replacement
performance guarantee is of an amount sufficient to cover the cost
of the installation of improvements, but not to exceed 120% of the
cost of the installation, which verification shall be determined consistent
with section 41 of P.L. 1975, c.291 (C.40:55D-53).
B.
An approving authority shall notify the Governing Body whenever it
accepts a replacement performance guarantee. Notice shall contain
a copy of the written confirmation of the new obligor's intent to
furnish a replacement performance guarantee and the municipal engineer's
written verification of the sufficiency of the amount of that replacement
performance guarantee.
C.
Within 30 days after receiving notice from the approving authority
of its acceptance of a replacement performance guarantee, the Governing
Body, by resolution, shall release the predecessor obligor from liability
pursuant to its performance guarantee.
A.
Prior to the release of a performance guarantee required pursuant
to this section, the developer shall post with the Borough a maintenance
guarantee in an amount not to exceed 15% of the cost of the installation
of the improvements which are being released.
(1)
The developer shall post with the Borough, upon the inspection
and issuance of final approval of the following private site improvements
by the Borough Engineer, a maintenance guarantee in an amount not
to exceed 15% of the cost of the installation of the following private
site improvements, which cost shall be determined according to the
method of calculation set forth in section 15 of P.L.1991, c.256 (C.40:55D-53.4):
(2)
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.
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 Borough for such utilities or improvements.
A.
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 Borough Engineer according to the method of calculation set
forth in section 15 of P.L. 1991, c. 256 (C. 40:55D-53.4) as of the
time of the passage of the resolution.
B.
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 Borough for the reasonable
cost of the improvements not completed or corrected, and the Borough
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 (C. 40A:11-1 et seq.).
C.
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 Borough Clerk, that the Borough Engineer prepare, in accordance
with the itemized cost estimate prepared by the Borough Engineer and
appended to the performance guarantee pursuant to 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 Borough 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 Borough 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.
(1)
The list prepared by the Borough 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 Borough
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 Borough Engineer and appended
to the performance guarantee pursuant to this section.
(2)
The Governing Body, by resolution, shall either approve the
bonded improvements determined to be complete and satisfactory by
the Borough 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 Borough
Engineer and appended to the performance guarantee pursuant to this
section. This resolution shall be adopted not later than 45 days after
receipt of the list and report prepared by the Borough 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.
(3)
For the purpose of releasing the obligor from liability pursuant
to its performance guarantee, the amount of the performance guarantee
attributable to each approved bond improvement shall be reduced by
the total amount for each such improvement, in accordance with the
itemized cost estimate prepared by the Borough 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 percent
of the total amount of the performance guarantee, then the Borough
may retain 30 percent of the amount of the total performance guarantee
and "safety and stabilization guarantee" to ensure completion and
acceptability of all 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 Borough below
30 percent.
(4)
If the Borough Engineer fails to send or provide the list and
report as requested by the obligor pursuant to 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 Borough 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.
(5)
If the Governing Body fails to approve or reject the bonded
improvements determined by the Borough 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
Borough 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 Borough Engineer and appended to the performance
guarantee pursuant to this section; and the cost of applying to the
court, including reasonable attorney's fees, may be awarded to the
prevailing party.
(6)
In the event that the obligor has made a cash deposit with the
Borough 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 Borough may retain cash
equal to the amount of the remaining "safety and stabilization guarantee."
D.
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.
E.
Nothing herein shall be construed to limit the right of the obligor
to contest by legal proceedings any determination of the Governing
Body or the Borough Engineer.
A.
The obligor shall reimburse the Borough for reasonable inspection
fees paid to the Borough Engineer for the foregoing inspection of
improvements; which fees shall not exceed the sum of the amounts set
forth hereinbelow. The Borough shall require the developer to post
the inspection fees in escrow in an amount:
(1)
Not to exceed, except for extraordinary circumstances, the greater
$500 or 5% of the cost of bonded improvements that are subject to
a performance guarantee under this section; and
(2)
Not to exceed 5% of the cost of private site improvements that
are not subject to a performance guarantee under this Section, which
cost shall be determined pursuant to Section 15 of P.L. 1991, c. 256
(C. 40:55D-53.4).
B.
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 Borough Engineer
for inspections, the developer shall deposit the remaining 50% of
the inspection fees.
C.
For those developments for which the inspection fees are 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 Borough Engineer
for inspection, the developer shall make additional deposits of 25%
of the inspection fees.
D.
If the Borough determines that the amount in escrow for the payment
of inspection fees, as calculated hereinabove, is insufficient to
cover the cost of additional required inspections, the developer shall
deposit additional funds in escrow. In such instance, the Borough
shall deliver to the developer a written inspection escrow deposit
request, signed by the Borough 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.
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
(C.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 Borough on 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 Borough Engineer.
