[Amended in entirety 9-17-2020 by Ord. No. 20-14. Prior history includes
Ord. No. 94-16, Appx. A. ]
[Amended 9-17-2020 by Ord. No. 20-14]
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), the municipality may require and shall accept in accordance with the standards adopted by ordinance 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 in accordance with paragraphs a through m of this subsection, and Section 25-1600.9 paragraphs a through c. If a municipality has adopted an ordinance requiring a successor developer to 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, the governing body may require and shall accept in accordance with the standards adopted by ordinance 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, in accordance with paragraphs a through m of this subsection, and Section 25-1600.9 paragraphs a through c.
b.
If required by ordinance, the developer shall furnish a performance
guarantee in favor of the municipality in an amount not to exceed
one hundred twenty percent (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
municipal 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: 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law," P.L. 1960, c. 141 (C. 46:23-9.9 et seq.; repealed by section
2 of P.L. 2011, c. 217) or N.J.S. 46:26B-1 through N.J.S. 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.
c.
The municipal 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.
d.
A municipality may also require a performance guarantee to include,
within an approved phase or section of a development privately-owned
perimeter buffer landscaping, as required by local ordinance or imposed
as a condition of approval.
e.
At the developer's option, a separate performance guarantee
may be posted for the privately-owned perimeter buffer landscaping.
f.
Such guarantee shall assure the installation of such improvements
on or before an agreed date, guarantee the completion of all improvements
without damage to or interference with adjacent properties or public
facilities, and hold the City Council and the Approving Authority
and their employees and agents harmless with respect to any acts of
the developer, its agents, successors, or assigns.
g.
Such performance guarantee may be in the form of cash, certified
check, negotiable securities, a performance bond issued by a bonding
company or surety company approved by the Approving Authority Attorney,
or any other type of surety acceptable to and approved by the Approving
Authority Attorney provided that at least ten percent (10%) of the
performance guarantee shall be in the form of cash or certified check
drawn on an insured banking institution in the State of New Jersey;
provided, however, that all rights to said ten percent (10%) portion
including the right to interest with dividends, be assigned to the
City in a form of assignment acceptable to the Approving Authority
Attorney for a period of the bond and that the principal amount be
returned to the developer upon completion of the bonded improvements
together with two-thirds (2/3) of earned interest, or in the event
of default, any interest and principal shall be used by and for the
benefit of the City in the completion of said improvements.
h.
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, if required
by an ordinance adopted by the municipality, furnish a separate guarantee,
referred to herein as a "temporary certificate of occupancy guarantee,"
in favor of the municipality in an amount equal to one hundred twenty
percent (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 paragraph a of this subsection, 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 zoning officer, municipal engineer, or
other municipal official designated by ordinance. At no time may a
municipality 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, municipal 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.
i.
A developer shall, if required by an ordinance adopted by the
municipality, furnish to the municipality a "safety and stabilization
guarantee," in favor of the municipality. 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 municipality
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 sixty (60) consecutive
days following such commencement for reasons other than force majeure,
and
2.
Work has not recommenced within thirty (30) days following the
provision of written notice by the municipality to the developer of
the municipality's intent to claim payment under the guarantee. A
municipality shall not provide notice of its intent to claim payment
under a "safety and stabilization guarantee" until a period of at
least sixty (60) days has elapsed during which all work on the development
has ceased for reasons other than force majeure. A municipality shall
provide written notice to a developer by certified mail or other form
of delivery providing evidence of receipt.
j.
The amount of a "safety and stabilization guarantee" for a development
with bonded improvements in an amount not exceeding one hundred thousand
dollars ($100,000.00) shall be five thousand dollars ($5,000.00).
k.
The amount of a "safety and stabilization guarantee" for a development
with bonded improvements exceeding one hundred thousand dollars ($100,000.00)
shall be calculated as a percentage of the bonded improvement costs
of the development or phase of development as follows: five thousand
dollars ($5,000.00) for the first one hundred thousand dollars ($100,000.00)
of bonded improvement costs, plus two and a half percent of bonded
improvement costs in excess of one hundred thousand ($100,000.00)
dollars up to one million ($1,000,000.00) dollars, plus one percent
(1%) of bonded improvement costs in excess of one million ($1,000,000.00).
l.
A municipality 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 subsection.
m.
A municipality shall release a "safety and stabilization guarantee"
upon the municipal engineer's determination that the development of
the project site has reached a point that the improvements installed
are adequate to avoid any potential threat to public safety.
[Amended 9-17-2020 by Ord. No. 20-14]
If at the time the performance guarantee is filed with the Approving
Authority, the developer has not also filed with the Approving Authority
proof that any other necessary performance guarantees have been filed
and accepted by governmental bodies, authorities, public utility companies,
and private utility companies other than the City which have jurisdiction
over improvements in the site or subdivision, the amount of the performance
guarantee shall be increased to reflect the cost of such improvements.
[Amended 9-17-2020 by Ord. No. 20-14]
All performance guarantees shall run to and be in favor of the
City of Ocean City in the County of Cape May.
[Amended 9-17-2020 by Ord. No. 20-14]
The performance guarantee shall be approved by the City Attorney
as to form, sufficiency and execution.
[Amended 9-17-2020 by Ord. No. 20-14]
If, during the period of the performance guarantee, the developer
fails to prosecute the work of completing the improvements so as not
to create hazards to life, health, property or public safety, the
City may, after five (5) days' notice perform, or cause to be performed,
any necessary corrective work and deduct the cost thereof from the
ten percent (10%) cash or certified check portion of the guarantee.
Upon notice of any such deduction, the developer shall, within ten
(10) days, restore the full ten percent (10%) cash balance or his
performance guarantee will be held to be void and the City may take
action as if final plat approval had not been obtained.
[Amended 9-17-2020 by Ord. No. 20-14]
No performance guarantees shall be presented for approval of
the City until the officials listed below have performed the following
and have made certification of their performance, in writing to the
Approving Authority.
a.
Approving Authority Engineer. The Approving Authority Engineer
shall:
1.
Where applicable, examine the plat map of a subdivision to make certain that it complies with all State laws and this Ordinance (Chapter 25) relative to the preparation and filing of maps or plans for the subdivision of land.
2.
Determine those acts or things the applicant is to do to protect
the City, such as to provide proper drainage, streets, curbs, signs,
monuments or any other item or thing and the cost of each, as well
as the maximum time he recommends granting the applicant to provide
each item or all items; also, advise the applicant of the amount required
to pay the City as a proper inspection, testing and administration
fee.
3.
Certify that the performance and inspection fees comply with Sections 25-1600.1.1a, 25-1300.17 and 25-1300.18 and are adequate to protect the interest of the City of Ocean City.
b.
City Clerk. The City Clerk shall:
1.
Ascertain that the plat of a site plan or subdivision has been
approved by the Cape May County Planning Board and the City Approving
Authority.
2.
Determine if the landowner is an individual, corporation, or
partnership; if an individual, his full name and address, if a corporation,
its correct name, date, and state of incorporation, the name of its
President and Secretary and location of its principal office in this
State; if a partnership, the names and addresses of all partners.
3.
Give the applicant a form of the surety company bond required by the City, and all figures, dates, and detail required by subsection 25-1600.2.1a above so the same may be included in the bond to be furnished to the City;
5.
If there is nothing the applicant needs to do under subsections 25-1600.2.1a1 and a2 above the certificate shall so state and give the reason therefor.
c.
Approving Authority Attorney. Upon receipt from the Approving
Authority of the surety bond and the Engineer's certificate, the Approving
Authority Attorney shall promptly examine said bond and determine
whether or not it is correct in form, content and execution. If the
bond is not correct, the Approving Authority Attorney shall directly
notify the applicant of its short-comings. When the bond is or has
been made correct, the Approving Authority Attorney shall make a written
certificate to that effect to the Approving Authority. Thereupon said
Approving Authority Attorney shall deliver the bond and Approving
Authority Engineer's and Approving Authority Attorney's certificates
to the City Clerk.
d.
City Clerk. Upon the receipt from the Approving Authority Attorney
of the bond and certificates of the Approving Authority Engineer and
Approving Authority Attorney, the City Clerk shall:
1.
Collect from the applicant the proper fee or fees, if any, payable
to the City in accordance with the Approving Authority certificate.
2.
Place the matter of approval of bond(s) on the agenda of the
next regular meeting of the Approving Authority for its consideration.
3.
Submit the bond, certificate and fees to the Approving Authority
at the next regular meeting of said Approving Authority.
[Amended 9-17-2020 by Ord. No. 20-14]
Each of said certificates shall be dated and written in letter
form upon the stationery of the maker or of the City and signed by
him or his authorized agent or representative.
[Amended 9-17-2020 by Ord. No. 20-14]
There must be attached to said bond an authority of the surety
company empowering the person or persons who executed said bond for
the surety company to do so. If the bonding company is not a New Jersey
corporation, there should also be attached to the bond proof of its
authority to do business in New Jersey and a copy of its last financial
statement, made not more than one (1) year before, showing its financial
condition. If the principal on the bond is a corporation, there must
be attached to the bond a certified copy of a resolution adopted by
its Board of Directors authorizing the execution and delivery of said
bond. Said bond must also bear the corporate seal of the surety company
and the seal, corporate or otherwise, of the principal.
[Amended 9-17-2020 by Ord. No. 20-14]
The City Clerk and Approving Authority Secretary shall keep
a supply of copies of these bond requirements in his office for the
use of applicants and the general public.
[Amended 9-17-2020 by Ord. No. 20-14]
Where the Approving Authority determines that off-tract improvements
are necessary for the proper development and utilizing of the proposed
site or subdivision and the surrounding area, it may require either
(1) that such off-tract improvements be installed or (2) that the
developer contribute to the installation of such off-tract improvements.
Where the Approving Authority has determined that off-tract improvements
are required, it shall be a condition of the granting of final approval
that such improvements be constructed or that the developer shall
make payments toward the ultimate installation of off-tract improvements
such as, but not limited to, streets, curbs and gutters, sidewalks,
water mains, sanitary sewers, storm sewers and culverts, monuments
and street lights, all in accordance with the specifications governing
on-tract improvements.
[Amended 9-17-2020 by Ord. No. 20-14]
If the Approving Authority determines that the developer may
contribute toward required off-tract improvements in lieu of such
improvements being installed, the Approving Authority shall allocate
the cost of same off-tract improvements in accordance with the standards
hereinafter set forth. The improvement of a stream and/or widening
of, or the construction of drainage or other improvements in, a street
or road fronting on the tract to be subdivided and/or developed shall
not constitute an off-tract improvement and the cost of said improvement
shall not be allocated.
a.
The allocation of the cost of off-tract improvements shall be
determined in accordance with the following:
1.
The Approving Authority may consider the total cost of the off-tract
improvements, the benefits conferred upon the site or subdivision,
the needs created by the site or subdivision, population and land
use projects for the general areas of the site or subdivision and
other areas to be served by the off-tract improvements, the estimated
times of construction of off-tract improvements and the condition
of periods of usefulness, which periods may be based upon the criteria
of The Local Bond Law N.J.S.A. 40A:2-22. The Approving Authority may
further consider the criteria set forth below.
2.
Road, curb, gutter, and sidewalk improvements may be based upon
the anticipated increase of traffic generated by the site or subdivision.
In determining such traffic increase, the Approving Authority may
consider traffic counts, existing and projected traffic patterns,
quality of roads and sidewalks in the area, and other factors related
to the need created by the site or subdivision and anticipated thereto.
3.
Drainage facilities may be based upon the percentage relationship
between the site or subdivision acreage and the acreage of the total
drainage basins involved or upon calculations developing the percentage
contribution that the storm runoff from a particular site or subdivision
bears to the total design capacity of any improvement; the particular
methods to be selected in each instance by the City Engineer.
b.
All monies received by the City in accordance with the provisions
of this Section shall be paid to the City Treasurer who shall provide
for a suitable depository therefor. Such funds shall be used only
for the improvements for which they are deposited or improvements
serving the same purposes unless such improvements are not initiated
for a period of five (5) years from the date of payment, after which
time said funds shall be transferred to the capital improvement fund
of the City.
c.
The apportionment of costs shall be determined by the Approving
Authority. The developer shall be afforded an opportunity before said
Board to present evidence relative thereto.
[Amended 9-17-2020 by Ord. No. 20-14]
Nothing in this section of the Ordinance (Chapter 25) shall preclude the City from assessing any real estate property benefiting from installation of any off-tract improvements as provided in this Section pursuant to the provisions of the N.J.S.A. 40:55D, an allowance being made to the respective parcels of realty for payments herein.
[Amended 9-17-2020 by Ord. No. 20-14]
Before any developer effectively assigns any of his interest
in any preliminary or final approval, he must notify the Approving
Authority and supply detailed information with regard to the name,
address, principals, type of organization, competency, experience,
and past performance of the assignee, transferee, or agent. Notice
of such assignments or transfer shall be given no later than ten (10)
days after its effective date. The assignee must be made acquainted
with all the conditions of approval and developer shall so certify.
[Amended 9-17-2020 by Ord. No. 20-14]
The applicant shall notify the Approving Authority and or City
Engineer in writing at least five (5) days prior to the start of construction
of on-site improvements and off-site or public improvements.
[Amended 9-17-2020 by Ord. No. 20-14]
Following receipt of this notice, the Approving Authority Engineer
and/or City Engineer may, at their discretion, call for a pre-construction
conference to review required on- and off-site inspection procedures
with the applicant. Should the Approving Authority Engineer and/or
City Engineer determine that the scope of the project does not warrant
a pre-construction meeting, the applicant shall be notified in writing
of the inspection requirements.
[Amended 9-17-2020 by Ord. No. 20-14]
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
one hundred twenty percent (120%) of the cost of the installation,
which cost shall be determined by the municipal 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 municipality for the reasonable
cost of the improvements not completed or corrected and the municipality
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 municipal clerk, that the municipal engineer prepare, in accordance
with the itemized cost estimate prepared by the municipal engineer
and appended to the performance guarantee pursuant to paragraph a
of this subsection, 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 municipal 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 municipal 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 forty-five (45) days
after receipt of the obligor's request.
d.
The list prepared by the municipal 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 municipal
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 municipal engineer and
appended to the performance guarantee pursuant to paragraph a of this
subsection.
e.
The governing body, by resolution, shall either approve the
bonded improvements determined to be complete and satisfactory by
the municipal 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 municipal
engineer and appended to the performance guarantee pursuant to paragraph
a of this subsection. This resolution shall be adopted not later than
forty-five (45) days after receipt of the list and report prepared
by the municipal 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 thirty percent (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.
f.
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 municipal 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 seventy percent (70%) of the total amount of the performance guarantee, then the municipality may retain thirty percent (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 thirty percent (30%).
g.
If the municipal engineer fails to send or provide the list
and report as requested by the obligor pursuant to paragraph d of
this subsection within forty-five (45) days from receipt of the request,
the obligor may apply to the court in a summary manner for an order
compelling the municipal 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 governing
body fails to approve or reject the bonded improvements determined
by the municipal engineer to be complete and satisfactory or reduce
the performance guarantee for the complete and satisfactory improvements
within forty five (45) days from the receipt of the municipal 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 municipal
engineer and appended to the performance guarantee pursuant to paragraph
a of this subsection; and the cost of applying to the court, including
reasonable attorney's fees, may be awarded to the prevailing party.
h.
In the event that the obligor has made a cash deposit with the
municipality 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 municipality may retain
cash equal to the amount of the remaining "safety and stabilization
guarantee."
i.
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.
j.
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.
[Amended 9-17-2020 by Ord. No. 20-14]
a.
The obligor shall reimburse the municipality for reasonable
inspection fees paid to the municipal engineer for the foregoing inspection
of improvements; which fees shall not exceed the sum of the amounts
set forth in paragraphs 1 and 2 of this paragraph a. The municipality
may require the developer to post the inspection fees in escrow in
an amount:
1.
Not to exceed, except for extraordinary circumstances, the greater of five hundred dollars ($500.00) or five percent (5%) of the cost of bonded improvements that are subject to a performance guarantee under Section 25-1600.1.1 paragraph a, paragraph b, or both paragraph a and paragraph b; and
2.
Not to exceed five percent (5%) of the cost of private site improvements that are not subject to a performance guarantee under Section 25-1600.1.1a, 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 ten thousand dollars ($10,000.00), fees may, at the option of
the developer, be paid in two installments. The initial amount deposited
in escrow by a developer shall be fifty percent (50%) of the inspection
fees. When the balance on deposit drops to ten percent (10%) of the
inspection fees because the amount deposited by the developer has
been reduced by the amount paid to the municipal engineer for inspections,
the developer shall deposit the remaining fifty percent (50%) of the
inspection fees.
c.
For those developments for which the inspection fees total ten
thousand dollars ($10,000.00) or greater, fees may, at the option
of the developer, be paid in four (4) installments. The initial amount
deposited in escrow by a developer shall be twenty-five percent (25%)
of the inspection fees. When the balance on deposit drops to ten percent
(10%) of the inspection 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 twenty
five percent (25%) of the inspection fees.
d.
If the municipality determines that the amount in escrow for
the payment of inspection fees, as calculated pursuant to paragraphs
a1 and a2 of this subsection, is insufficient to cover the cost of
additional required inspections, the municipality may require the
developer to deposit additional funds in escrow provided that the
municipality delivers to the developer a written inspection escrow
deposit request, signed by the municipal 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.
[Amended 9-17-2020 by Ord. No. 20-14]
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.
[Amended 9-17-2020 by Ord. No. 20-14]
To the extent that any of the improvements have been dedicated
to the municipality on the subdivision plat or site plan, the municipal
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 municipal engineer.
[Amended 9-17-2020 by Ord. No. 20-14]
Prior to signing of any final plat, issuance of a Development Permit or the start of construction of any improvements required by the provisions of this Ordinance (Chapter 25), the developer shall deposit by cash or certified check with the City Clerk an amount determined from the schedule under Article 1300, of this Ordinance (Chapter 25). Said amount shall be used to defray the cost of inspection, testing, engineering, administration, and other costs, and fees paid by the City in connection with the inspection and acceptance of the installation of the required improvements. All monies received on account of engineering and inspection fees shall be deposited by the City Treasurer in an appropriate account. The City shall arrange for the Approving Authority Engineer, the appropriate municipal officials or other qualified persons to provide all necessary administrative and engineering services.
All required improvements except those utility improvements
which are not the responsibility of the City shall be subject to inspection
and approval by the Approving Authority and/or City Engineer, who
shall be notified by the developer at least five (5) days prior to
the initial start of construction and again twenty-four (24) hours
prior to the resumption of work after any idle period exceeding one
(1) working day. All of the utility improvements shall be subject
to inspection and approval by the owner or agency controlling the
utility that shall be notified by the developer in accordance with
the utilities' requirements. No underground installation shall be
covered until it is inspected and approved by the owner of or agency
controlling the utility.
The following additional inspections are required:
a.
Prior to paving.
b.
Prior to site work concrete pours, i.e. sidewalks, curbs, pavements,
slabs and parking aprons.
c.
Prior to back filling drainage and/or sanitary sewer lines.
d.
Following installation of landscaping features including but
not necessarily limited to trees, shrubs, ground cover, sod, mulch,
fencing, pavers and border timbers.
e.
Following completion of all site or subdivision improvements prior to the issuance of a permanent Certificate of Occupancy or substantial completion prior to the issuance of a temporary Certificate of Occupancy (subsections 25-1600.8.1 and 25-1600.8.2), the inspection shall include all elements of the approved Site and or Subdivision Plan and Engineer's estimate.
f.
Prior to the release of the maintenance guarantee, the Approving
Authority and or City Engineer shall notify the Approving Authority
following final or substantial completion of improvements. The Zoning
Officer shall receive a copy of this report.
[Amended 9-17-2020 by Ord. No. 20-14]
Any time, whether as a result of his inspection of work underway
or otherwise, the Approving Authority Engineer may recommend that
the developer be required to modify the design and extent of the improvements
required, notifying the Approving Authority of his recommendations.
The Approving Authority shall, if it considers such modifications
to be major, or if requested by the developer or Approving Authority
Engineer, take formal action to approve or disapprove such recommendations;
provided, however, that it must first afford the developer an opportunity
to be heard. If the Agency takes no formal action within thirty (30)
days of such recommendations, or where the developer has not requested
formal Approving Authority action, its approval will be assumed. Similarly,
the Approving Authority may grant or deny the developer permission
to affect such modification upon his application and the Approving
Authority Engineer's approval. In either event, where such modification
is to be affected, the appropriate plat must be revised by the developer
or his engineer to reflect such modification and sufficient copies
thereof submitted to the Administrative Officer (Approving Authority
or Board of Adjustment Secretary) for distribution.
[Amended 9-17-2020 by Ord. No. 20-14]
All improvements, except as otherwise provided, shall be subject
to inspection and approval by the Approving Authority Engineer. No
underground installation shall be covered until inspection and approved
by the Approving Authority Engineer or those agencies having jurisdiction
over the particular installation. If such installation is covered
prior to inspection, it shall be uncovered or other inspection means
used, such as a television or other pipeline camera as may be deemed
necessary by the Approving Authority Engineer, and charges for such
work will be paid for by the developer.
[Amended 9-17-2020 by Ord. No. 20-14]
Inspection of any work by the Approving Authority Engineer,
or his authorized representative, shall not be considered to be final
approval or rejection of the work, but shall only be considered to
be a determination of whether or not the specific work involved was
being done to City specifications or other required standards at the
time of inspection. Any damage to such work or other unforeseen circumstances
such as the effect of the weather, other construction, changing conditions,
settlement, etc. between the time of installation and the time that
the developer wishes to be released from his performance guaranty,
shall be the full responsibility of the developer, and no work shall
be considered accepted until release of the performance guaranty.
[Amended 9-17-2020 by Ord. No. 20-14]
No developer shall enter into any contract requiring the City
Council, Approving Authority, the City Engineer, Approving Authority
Engineer, or any of their agents, employees or other representatives
to make any declaration, written or otherwise, as a condition of payment
of said developer to a contractor as to the acceptance or rejection
of the work. Neither the City Council, Approving Authority, City Engineer,
Approving Authority Engineer nor any of their agents, employees, or
representatives shall make any such declaration.
[Amended 9-17-2020 by Ord. No. 20-14]
When the developer has constructed and installed the streets,
drainage facilities, curbs, sidewalks, street signs, monuments and
other improvements in accordance with City regulations, standards
and specifications, and desires the City to accept the said improvements,
he shall, in writing, addressed to and in a form approved by the Approving
Authority, with copies thereof to the Approving Authority Engineer,
request the Approving Authority Engineer to make a semi-final inspection
of the said improvements. If the improvements have been constructed
under a performance guaranty after approval of a final plat, the developer
shall submit an as-built plan showing as-built grades, profiles and
sections and locations of all subsurface utilities such as french
drains, combination drains, sanitary sewage disposal systems, both
public and individual water lines, and control valves, gas lines,
telephone conduits, monuments, iron property markers, and any other
utility or improvements installed other than as shown on the approved
final plat. Said as-built plan shall be certified to by a licensed
New Jersey professional engineer. If any improvements are constructed
prior to final plat approval, the final plat shall reflect all changes
and as-built conditions and be so certified. Said as-built plan shall
be certified to by a licensed New Jersey professional engineer. If
any improvements are constructed prior to final plat approval, the
final plat shall reflect all changes and as-built conditions and be
so certified. Said as-built plan(s) shall be submitted on reproducible
media.
[Amended 9-17-2020 by Ord. No. 20-14]
It shall be the responsibility of the developer to maintain
the entire site or subdivision in a safe and orderly condition during
construction. Necessary steps shall be taken by the developer to protect
occupants of the site or subdivision and the general public from hazardous
and unsightly conditions during the entire construction period. These
steps shall include, but are not limited to the following:
a.
Open excavations shall be enclosed by fencing or barricades
during non-construction hours. Moveable barricades shall be equipped
with yellow flashing hazard markers or other lighting during the hours
of darkness.
b.
The excavation of previously installed sidewalk and pavement
areas which provide access to occupied buildings in the site or subdivision
shall be clearly marked with signs and barricades. Alternate safe
access shall be provided for pedestrians and vehicles to the occupied
buildings.
c.
Materials stored on the site shall be screened from the view
of occupants of the subdivision or site and adjoining street and properties.
d.
Safe vehicular and pedestrian access to occupied buildings in
the site or subdivision shall be provided at all times.
e.
Construction activities which create obnoxious and unnecessary
dust, fumes, odors, smoke, vibrations, or glare noticeable in occupied
buildings in the subdivision or site and adjoining properties and
streets shall not be permitted.
f.
Construction activities which will result in damage to trees
and landscaping in occupied buildings in the site or subdivision or
adjoining properties shall not be permitted.
g.
All locations and activities in the site or subdivision which
present potential hazards shall be marked with signs indicating the
potential hazard.
h.
Unsightly construction debris, including scrap materials, cartons,
boxes and wrappings must be removed daily at the end of each working
day.
i.
Whenever construction activities take place within or adjacent
to any traveled way, or, interfere with existing traffic patterns
in any manner, suitable warning signs, conforming to the requirements
of the Uniform Manual on Traffic Control Devices, will be erected
and maintained by the developer.
[Amended 9-17-2020 by Ord. No. 20-14]
Should the developer fail in his obligation to maintain the
site or subdivision in a safe and orderly condition, the City may,
on five (5) days written notice or immediately in the case of hazard
to life, health or property, undertake whatever work may be necessary
to return the site or subdivision to a safe and orderly condition
and deduct the cost thereof from the ten percent (10%) cash or certified
check portion of the performance guaranty. Upon notice of such deduction,
the developer shall, within ten (10) days, restore the full ten percent
(10%) cash balance or his performance guaranty will be held to be
void and the City may take action as if final plat approval had not
been obtained.
[Amended 9-17-2020 by Ord. No. 20-14]
The Construction Official shall, upon receiving notice from
the Approving Authority Engineer that a developer is in violation
of this Section, suspend further issuance of Certificates of Occupancy
and building permits and may order cessation of work on any outstanding
permit.
[Amended 9-17-2020 by Ord. No. 20-14]
No permanent Certificate of Occupancy shall be issued for any
use or building until all required on- and off-site improvements are
installed and approved by the Approving Authority and/or City Engineer
and the Construction Code Official.
[Amended 9-17-2020 by Ord. No. 20-14]
No temporary Certificate of Occupancy shall be issued for any
use or building involving the installation of utilities or street
improvements, parking areas, buffer areas, storm drainage facilities,
other site improvements, the alteration of the existing grade on a
lot or the utilization of a new on-site well or sanitary disposal
system unless the Approving Authority Engineer or other appropriate
authority shall have, where applicable, certified to the following:
a.
Utilities and Drainage. All utilities, including, but not limited
to, water, gas, storm drains, sanitary sewers, electric lines and
telephone lines shall have been properly installed and service to
the lot, building or use from such utilities shall be available.
b.
Street Rights-of-Way. All street rights-of-way necessary to
provide access to the lot, building or use in question shall have
been completely graded and all slope retaining devices or slope planting
shall have been installed.
c.
Sidewalks. All sidewalks necessary to provide access to the
lot, building or use in question shall have been properly installed.
d.
Streets. Curbing, and the bituminous base course of bituminous
concrete streets or the curbing and pavement course for Portland cement
concrete streets necessary to provide access to the proposed lot,
building or use shall have been properly installed.
e.
Curbing and Parking Areas. Curbing and the bituminous base course
of parking areas necessary to provide access to the required number
of parking spaces for the building or use in question shall have been
properly installed.
f.
Obstructions. All exposed obstructions in parking areas, access
drives or streets such as manhole frames, water boxes, gas boxes and
the like shall be protected by building to the top of such exposures
with bituminous concrete as directed by the City Engineer.
g.
Screening, Fences, and Landscaping. All required screening,
fencing and/or landscaping related to the lot, building or use in
question shall have been properly installed unless the City Engineer
shall direct the developer to delay the planting of screening and
landscaping until the next planting season in order to improve the
chances of survival of such plantings.
h.
Site Grading. All site grading necessary to permit proper surface
drainage and prevent erosion of soils shall have been completed in
accordance with the soil disturbance plans approved by the Cape Atlantic
Soil Conservation District.
i.
Public Water Supply. Where the proposed lot, building or use
is served by a public water supply, said supply shall have been installed
and tested and all required fire hydrants or fire connections shall
have been installed and tested and approved.
j.
Lighting. All outdoor lighting shall have been installed and
shall be operational or payment made to the Atlantic City Electric
for the installation of said lighting.
k.
Street Signs and Traffic Control Devices. All street signs,
paint lining and/or traffic control devices affecting the proposed
lot, building, or use, and required under the terms of approval of
a subdivision or site plan or by Federal, State, County, or municipal
rules, regulations, or laws, shall have been installed.
l.
Performance Guarantee. The Code Enforcement Official shall have
received a statement signed by the Developer and any entity providing
any performance guarantee, which contains language identical or similar
to the following: "The issuance of any Certificate of Occupancy (temporary
or permanent) shall not be a basis for any claimed reduction in any
performance guarantee."
m.
Other. Any other conditions established for issuance of a Certificate
of Occupancy by the Approving Authority as a condition of final site
plan approval shall be complied with.
[Amended 9-17-2020 by Ord. No. 20-14]
Temporary Certificates of Occupancy shall be issued for a specified
period of time, not to exceed one (1) year and the applicant shall
post a cash guarantee with the City in an amount equal to the cost,
to the City, of constructing all uncompleted improvements, prior to
the issuance of any such temporary Certificate of Occupancy.
[Amended 9-17-2020 by Ord. No. 20-14]
a.
If required by ordinance, the developer shall post with the municipality, prior to the release of a performance guarantee required pursuant to subsection 25-1600.1.1, a maintenance guarantee in an amount not to exceed fifteen percent (15%) of the cost of the installation of the improvements which are being released.
b.
If required, the developer shall post with the municipality, upon
the inspection and issuance of final approval of the following private
site improvements by the municipal engineer, a maintenance guarantee
in an amount not to exceed fifteen percent (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 (C. 40:55D-53.4).
c.
The term of the maintenance guarantee shall be for a period not to
exceed two (2) years and shall automatically expire at the end of
the established term.
d.
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 municipality for such utilities or improvements.
e.
The developer may elect to furnish such maintenance guarantee either by: (1) maintaining on deposit with the City the ten percent (10%) cash or certified check portion of the performance guarantee provided in accordance with Section 25-1600.1; or (2) by a bond issued by a bonding company or surety company, or other type of surety acceptable to and approved by the Approving Authority Attorney and Approving Authority. Should the applicant, developer, owner or user fail in his obligation to properly maintain all improvements, the City may, on ten (10) days written notice or immediately, in the case of hazard to life, health or property, proceed with necessary repair or replacement of any unacceptable improvements and charge the cost thereof against the guarantee. At the end of the maintenance guarantee the cash or certified check or deposit will be returned to the developer less any sums, properly documented by the City which has been expended to repair or replace any unsatisfactory improvements.
