[Amended 4-11-2018 by Ord. No. 18:04]
A.
The Borough, as a condition of final site plan approval, may require the developer to furnish and shall accept in accordance with the standards adopted by this Code and the regulations adopted pursuant to Section 1 of P.L. 1999, c. 68 (N.J.S.A. 40:55D-53a) a performance guarantee, for the purpose of assuring the installation and maintenance of certain on-tract improvements, and a maintenance guarantee, both in accordance with Subsection A(1) and (2) of this subsection. Successor developers shall furnish a replacement performance guarantee, as a condition to the 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, and the Borough shall accept the replacement performance guarantee in accordance with the standards adopted by this Code and the regulations adopted pursuant to Section 1 of P.L. 1999, c. 68 (N.J.S.A. 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, in accordance with Subsection A(1) and (2) of this subsection.
(1)
Performance guarantee.
(a)
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 (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," P.L. 1960, c. 141 (N.J.S.A. 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seq.; repealed by Section 2 of P.L. 2011, c. 217) or N.J.S.A. 46:26B-1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, water mains, sanitary sewers, community
septic systems, drainage structures, public improvements of open space,
and any grading necessitated by the preceding improvements.
[1]
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.
(b)
The developer also will furnish a performance guarantee to include,
within an approved phase or section of a development privately owned
perimeter buffer landscaping, as imposed as a condition of approval.
[1]
At the developer's option, a separate performance guarantee
may be posted for the privately owned perimeter buffer landscaping.
(c)
If the developer seeks 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, required pursuant to Subsection A(1)(a) of this section, which relate to the development, unit, lot, building, or phase of development of 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 Zoning Officer and Borough Engineer. The Borough will not 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 Zoning Officer, or the Borough 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.
(d)
A developer shall 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;
and
[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. 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 a developer by
certified mail or other form of delivery providing evidence of receipt.
[a]
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.
[b]
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:
[c]
The Borough shall release a separate safety and
stabilization guarantee to a developer upon the developer's furnishing
of a performance guarantee that includes a line item for safety and
stabilization in the amount required under this subsection.
[d]
The Borough shall release a safety and stabilization
guarantee upon the Borough 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.
(2)
Maintenance guarantee.
(a)
The developer shall post with the Borough, prior to the release of a performance guarantee required pursuant to Subsection A(1)(a), (b), or both Subsection A(1)(a) and (b) of this subsection, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.
(b)
If required, 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: stormwater management basins,
in-flow and water quality structures within the basins, and the out-flow
pipes and structures of the stormwater management system, if any,
which cost shall be determined according to the method of calculation
set forth in Section 15 of P.L. 1991, c. 256 (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.
(3)
If other governmental agencies or public utilities automatically
will own the utilities to be installed or the improvements are covered
by a performance or maintenance 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.
B.
The time allowed for installation of the bonded improvements for
which a 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 increase
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 (N.J.S.A. 40:55D-53.4) as of the
time of the passage of the resolution.
C.
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 (N.J.S.A. 40A:11-1 et seq.).
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 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 Subsection A of this section, a list of all incomplete or unsatisfactory completed 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 improvements have been completed and which improvements remain incomplete 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 Subsection A of this section.
E.
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 Subsection A of 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 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.
(1)
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 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% of the total amount of the performance guarantee, then the Borough 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 Borough below 30%.
(2)
If the obligor has made a cash deposit with the Borough 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, the Borough 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
Borough 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.
Inspection fees.
(1)
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 in Subsection G(1)(a) and (b) of this section. The Borough may require the developer to post the inspection fees in escrow in an amount:
(2)
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 20% 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.
(3)
For those developments for which the inspection fees 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.
(4)
If the Borough determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsection G(1)(a) and (b) of this section, is insufficient to cover the cost of additional required inspections, the Borough may require the developer to deposit additional funds in escrow provided that the Borough delivers 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.
H.
If 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.
I.
If any of the improvements have been dedicated to the Borough on a subdivision plat or site plan, the governing body shall be deemed, upon the release of any performance guarantee required pursuant to Subsection A of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plan and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Borough Engineer.
A.
Off-tract improvements; when required.
(1)
Any site plan requiring off-tract improvements, as
defined herein, shall comply with the provisions of this section.
(2)
An off-tract improvement shall be one or more required
improvements which are necessary for the successful completion of
a development in the interest of furthering the public health, safety
and general welfare and where said improvements are located off-tract.
(3)
An off-tract improvement shall be required where either
the existing facilities serving the area or subarea are already operating
at a deficient level of service, or the inclusion of the new development
will make such present level of service deficient according to engineering
standards utilized in determining such levels of service.
(4)
The proportionate contribution of any such off-tract
improvement to the applicant shall be reasonably related to the relative
benefit or use of the total area so served.
(5)
Under the conditions of this chapter, off-tract improvements
shall be limited to new or improved water distribution; sanitary sewerage
disposal system; stormwater and drainage system and facilities and
all necessary appurtenances thereto; all public utilities, including
required easements, new or improved street and right-of-way widths;
traffic regulation and control devices; intersection improvements;
public utility relocation; and improvements required by solutions
to traffic, circulation and safety factors which are related to the
property or properties being developed.
(6)
Off-tract improvements shall not include the improvement
cost for an entire utility system or street system or major segment
thereof, including sewerage treatment plants, water supply or treatment
facilities or substantial street construction or improvements or other
similar undertakings unless said improvements are significantly affected
by the property and properties in question or are required for proper
development of such property or properties.
B.
Approving authority determination. Each site plan
requiring approving authority approval shall be subject to a determination
and findings as follows:
(1)
That certain off-tract improvements are or are not
necessary to implement such site plan.
(2)
That, in instances where off-tract improvements are
required, the terms and conditions which shall be imposed upon the
applicant shall ensure the successful and reasonable implementation
of the requirement.
(3)
In the event that the approving authority determines
that one or more improvements constitute an off-tract improvement,
the approving authority, by resolution, shall notify the governing
body of such determination, specifying the approving authority's recommendation
relative to the estimated cost of the improvement, the applicant's
pro rata share of the cost, other property owners who may benefit
from such off-tract improvement and the approving authority's recommendations
concerning how such off-tract improvement can be made, what the borough's
responsibilities should be and what performance or maintenance guaranties,
cash contributions, agreements and other forms of surety should be
required of the applicant.
(4)
Action by an approving authority relating to off-tract
improvements shall be deferred until the governing body has had the
opportunity to review the recommendation of the approving authority
and has made a determination as to whether the borough will accept
any obligations concerning such off-tract improvement. The borough
shall not be responsible to construct, install or provide off-tract
improvements to accommodate the development of an applicant's lands.
(5)
When an applicant pays the amount determined as its
pro rata share of the cost of an off-tract improvement under protest,
the applicant shall institute legal action within one year of such
payment in order to preserve the right of judicial determination as
to the fairness and reasonableness of such pro rata share. No building
permit shall be issued until the expiration of said one year period
or until such time as the applicant has waived the right to seek such
a judicial determination under the provisions of this chapter.
(6)
The approving authority shall not take any final action
concerning a preliminary site plan approval until the applicant and
the governing body have entered into an agreement providing for such
off-tract improvement and the obligations of the applicant and a copy
of the agreement and action of the governing body has been filed with
the approving authority.
C.
Methods of implementation.
(1)
Performance and maintenance guaranties. Where a performance or maintenance guaranty or other surety is required, concerning an off-tract improvement, the applicant shall be required to follow the same procedure and requirements as set forth in § 231-34 of this chapter.
(2)
Development agreement. Where a development agreement is required concerning off-tract improvements or other conditions as may be required by this chapter or the approving authority, the developer's agreement shall be made pursuant to § § 231-10 of this chapter. The agreement may specify the amount of cash contributions, if any, the method of payment of such contributions and the time of such payments in relation to any obligations to be undertaken by the borough.
(3)
Cash contributions.
(a)
When not required. Cash contributions for off-tract
improvements shall not be required under the following conditions:
[1]
Where state or county agencies or a utility
authority have jurisdiction over such off-tract improvement and require
a cash contribution, guaranty or other surety of the applicant in
lieu of such conditions as the borough may impose; or
[2]
Where a benefit assessment or other similar
levy is imposed upon the applicant and other land owners benefited
by such off-tract improvement; or
[3]
Where the applicant may legally install such
improvements in lieu of the borough pursuant to standards and conditions
imposed by the borough.
(b)
Method of payment. Where a cash contribution
is required, the contribution shall be deposited with the Borough
Treasurer and proof of deposit filed with the approving authority,
governing body and Borough Engineer.
(c)
All such contributions received by the Borough Treasurer shall be deposited into an escrow account for the purpose of the specific off-tract improvement. In the event that such improvements are not initiated or provided for within a period of 10 years from the date of such contribution, the contribution shall be returned to the applicant pursuant to the terms of the applicant's agreement with the borough or, in the event that there is no such agreement, to the owner or owners of the lands being subdivided. In the event that the applicant made a cash contribution and it is later determined that such a contribution should not have been required under the provisions of Subsection C of this section, the contribution shall be returned to the applicant upon such determination.
D.
Pro rata formula in determining applicant's share
of off-tract improvements. Where an off-tract improvement is required,
the following criteria shall be used in determining the applicant's
proportionate share of the cost of such improvement:
(1)
Street improvements. New streets, street widening,
alignment, correction, channelization of intersections, construction
of barriers, new or improved traffic simulization, signs and curbs,
street trees and landscaping utility improvements or relocations and
other similar street or traffic improvements: the applicant's proportionate
share shall be in the ratio of the estimated peak-hour traffic generated
by the development of the applicant's land to the sum of the present
deficiency in peak-hour traffic capacity of the present road facilities
and the estimated peak-hour traffic generated by the applicant's proposed
development. The applicant's calculated proportionate share shall
then be increased by 10% for contingencies.
(2)
Sanitary distribution facilities. Sanitary sewer distribution
facilities, including the installation, relocation or replacement
of collector and interceptor sewers and the installation and relocation
or replacement of other appurtenances associated therewith: the applicant's
proportionate cost shall be in the ratio of the estimated daily flow
of effluent (in gallons) from the proposed development of applicant's
lands to the sum of the present deficiency in capacity for the existing
system or subsystem and the estimated daily flow from the applicant's
proposed developed lands. In the case where the peak flow from the
proposed development may occur during the peak flow period from the
existing system, the ratio shall be the estimated peak flow rate from
the proposed development in gallons per minute to the estimated present
peak flow deficiency in the existing system or subsystem and the estimated
peak flow rate from the proposed development. The greater of the two
ratios thus calculated shall be increased by 10% for contingencies
and shall be the ratio used to determine the cost to the applicant.
(3)
Stormwater and drainage improvements. Stormwater and
drainage improvements, including the installation, relocation or replacement
of pipes, culverts, catch basins, other appurtenances and retention
basins: the applicant's proportionate share shall be determined in
the ratio of the estimated peak surface runoff from applicant's developed
lands into the existing drainage system measured in cubic feet per
second to the sum of the existing peak flow in cubic feet per second
deficiency for the existing system and the estimated peak flow from
the applicant's lands. The ratio thus calculated shall be increased
by 10% for contingencies.
