[HISTORY: Adopted by the Board of Commissioners of the Township
of Long Beach 2-4-2019 by Ord.
No. 19-02C. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the
meanings indicated:
Any person or legal entity submitting an application for
development.
The division of a parcel of land into two or more parcels,
the construction, reconstruction, conversion, structural alteration,
relocation, or enlargement of any building or other structure or of
any mining excavation or landfill, and any use or change in the use
of any building or other structure, or land or extension of use of
land, for which permission may be required pursuant to P.L. 1975,
c. 291 (N.J.S.A. 40:55D-1 et seq.).
Any security which may be accepted by the Township for the
maintenance of any improvements, including, but not limited to, surety
bonds, letters of credit under certain circumstances provided by law,
and cash.
Any security which may be accepted by the Township, including
but not limited to surety bonds, letters of credit under certain circumstances
provided by law, and cash.
An individual, partnership, corporation, cooperative association,
or any other legal entity.
Before filing of final subdivision plats, recording of minor
subdivision deeds, as a condition of final site plan approval, or
as a condition to the issuance of a zoning permit pursuant to N.J.S.A.
40:55D-65, the Township may require and shall accept for the purpose
of assuring the installation and maintenance of certain on-tract improvements,
the furnishing of guarantees pursuant to the requirements of this
chapter.
A.
The furnishing of a performance guarantee in favor of the Township
in an amount equal to 120% of the cost for the purpose of guaranteeing
the completion of only those improvements required by an approval
or developer's agreement, ordinance, or regulation to be dedicated
to a public entity that have not yet been installed. The cost shall
be determined by the Township Engineer according to the method of
calculation set forth in 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"; water
mains; sanitary sewers; drainage structures; public improvements of
open space; and any grading necessitated by the preceding improvements.
The performance guarantee may also be required to include a guarantee
for the installation of privately owned perimeter buffer landscaping.
At the applicant's option, a separate performance guarantee may
be posted for the privately owned perimeter buffer landscaping.
(1)
The Township 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.
Successor applicants may be required by the Board of Commissioners to furnish a replacement performance guarantee in accordance with Subsection A of this Section for the purpose of assuring the installation of improvements. A replacement performance guarantee shall not be accepted without securing the following:
(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 Township 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 N.J.S.A. 40:55D-53.
C.
The time allowed for installation of the bonded improvements for
which the performance guarantee has been provided may be extended
by the Board of Commissioners 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 in N.J.S.A. 40:55D-53.4 as of the time of the passage of
the resolution.
D.
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 Board of Commissioners in writing, by certified mail addressed in care of the Municipal 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 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 Township 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 Township Engineer shall inspect all bonded improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Board of Commissioners, 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 Township 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 Township
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 Township Engineer and appended
to the performance guarantee pursuant to this section.
E.
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 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. 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 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.[1]
[1]
Editor's Note: See N.J.S.A. 40A:11-1 et seq.
A.
In the event that the applicant 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 applicant shall furnish
a separate guarantee in favor of the Township 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.
(1)
Upon posting of a temporary certificate of occupancy guarantee, all
sums remaining under a performance guarantee that 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 Township Engineer. At no time may the Township 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 Township Engineer 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.
B.
The scope and amount of the temporary certificate of occupancy guarantee
shall be determined by the construction code official or zoning officer
or their designee, and the form of the guarantee shall be approved
by the Township Attorney. The temporary certificate of occupancy guarantee
shall be released by the construction code official or zoning officer
or their designee 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.
As a condition of final site plan approval, the Land Use Board may
require and shall accept a safety and stabilization guarantee. At
the applicant'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 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.
A safety and stabilization guarantee is only available in the
event:
(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 to the applicant of the Township's intent
to claim payment under the guarantee.
B.
The Township shall not provide notice of its intent to claim payment
under the 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 the applicant by certified mail or other
form of delivery providing evidence of receipt.
(1)
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.
(2)
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:
(a)
Five thousand dollars 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.
(b)
The separate safety and stabilization guarantee shall be released
upon the furnishing of a performance guarantee that includes a line
item for safety and stabilization in the amount required.
(c)
The safety and stabilization guarantee shall be released upon
the Township 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.
A.
The applicant shall post with the Township, prior to the release
of a performance guarantee, a maintenance guarantee in an amount equal
to 15% of the cost of the installation of the improvements covered
under the performance guarantee, along with the following site improvements:
stormwater management basins; inflow and water quality structures
within the basins; and the outflow pipes and structures of the stormwater
management system.
B.
The cost shall be determined by the Township Engineer in accordance
with the method of calculation set forth in 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.
A.
The obligor shall reimburse the Township for reasonable inspection fees paid to the Township Engineer for the inspection of improvements; which fees shall not exceed the sum of both amounts set forth below in Subsection A(1) and (2), except that if the Township determines that the amount in escrow for the payment of inspection fees as calculated is insufficient to cover the cost of additional required inspections, the Township may require the applicant to deposit additional funds in escrow, provided that the municipality delivers to the applicant a written inspection escrow deposit request, signed by the Township Engineer, which informs the applicant 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.
B.
For those developments for which the inspection fees total $10,000
or greater, fees may, at the option of the applicant, be paid in four
installments. The initial amount deposited in escrow by an applicant
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
applicant has been reduced by the amount paid to the Township Engineer
for inspection, the applicant shall make additional deposits of 25%
of the inspection fees. For those developments for which the inspection
fees total less than $10,000, fees may, at the option of the applicant,
be paid in two installments. The initial amount deposited in escrow
by an applicant 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 applicant has been reduced by the amount paid to
the municipal engineer for inspections, the applicant shall deposit
the remaining 50% of the inspection fees.
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 Township for such utilities or improvements.
To the extent that any of the improvements have been dedicated
to the Township on the subdivision plat or site plan, the Board of
Commissioners shall be deemed, upon the release of any performance
guarantee required pursuant to this chapter, 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 Township Engineer.
A.
The Board of Commissioners, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Township 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 Township Engineer and appended to the performance guarantee pursuant to § 103-3. The resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution by the Board of Commissioners, 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.
B.
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 Township Engineer and appended to the performance guarantee pursuant to § 103-3, 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 Township may retain 30% of the amount of the total performance guarantee and safety and stabilization guarantee 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%.
C.
The Township Engineer shall provide the list and report as requested
by the obligor within 45 days from receipt of the request.
D.
The Board of Commissioners shall approve or reject the bonded improvements
determined by the Township 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 Township Engineer's
list and report.
E.
In the event that the obligor has made a cash deposit with the Township or as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to § 103-10 above 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 applicant 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
Board of Commissioners 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 chapter shall be followed.
A.
If the property or any part of same is sold, or otherwise conveyed
to a successor applicant prior to the completion and acceptance of
all improvements, an assignment of developer's agreement and/or
new performance, maintenance, or other guarantees shall be required
from the new owner or successor applicant. Upon the transfer of ownership
of property that is the subject of a construction permit, and prior
to beginning or continuing work authorized by the construction permit,
the new owner or successor applicant shall file with the Building
Department an application for a permit update to notify the Construction
Department of the name and address of the new owner or successor applicant
and of all other changes to information previously submitted to the
Construction Department. The Construction Department shall not approve
the application for a permit update until it receives notification
from the governing body or its designee that the new owner or successor
developer has furnished adequate replacement performance, maintenance
or other guarantees and assignment of developer's agreement.
B.
The Township may accept an assignment of guarantees in accordance
with the opinion of the Township Attorney or may direct the applicant
or owner to obtain new guarantees pursuant to the requirements of
this chapter and N.J.S.A. 40:55D-1 et seq.
