Township of West Milford, NJ Article VIII On-Tract Improvements, Guarantees and Inspections

§ 470-29 Requirement of performance guarantees.

A. Subdivision approval. Prior to the recording of the final subdivision plat, the Board shall require the furnishing of a performance guarantee assuring the installation of all required on-tract improvements on or before an agreed date as herein provided, unless the satisfactory completion and performance of all such improvements has been certified to the Board by the Township Engineer.

B. Site plan approval. No application for final site plan approval shall be approved by the Board until the satisfactory completion and performance of all required on-tract improvements have been certified to the Board by the Township Engineer, unless the owner shall have filed with the Township a performance guarantee assuring the installation of such improvements on or before an agreed date and as hereinafter provided.

C. Zoning permit. No zoning permit pursuant to Article VI, Variances, or Article XIV, Zone Change Requests, of this chapter shall be issued until the satisfactory completion and performance of all such required on-tract improvements have been certified to the Board by the Township Engineer, unless the owner shall have filed with the Township a performance guarantee assuring the installation of such improvements on or before an agreed date and as hereinafter provided.

D. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed, or the improvements are governed by a performance guarantee to another governmental agency, no performance guarantee shall be required notwithstanding the provisions of Subsections A, B, and C of this section.

§ 470-30 Performance guarantee.

When a performance guarantee is required under this article:

A. The performance guarantee shall be furnished in favor of the Township in the amount of the "performance guarantee estimate" as determined by the Township Engineer pursuant to § 470-32.

B. A letter of credit shall be an acceptable form of performance guarantee if approved by the Township Attorney pursuant to § 470-35 and only under the following conditions:

(1) It is revocable for an initial period of at least two years with automatic one-year renewal unless the bank notifies the Township in writing by certified mail at least 90 days before the initial date of expiration or each anniversary of such date that it will not be renewed;

(2) If the letter of credit is not renewed the Township shall have the right to immediately draw a draft on sight if the developer's performance is not satisfactory as of that date, or to draw a draft 30 days after receipt of said notice if, after notification by the Township that the letter of credit will not be renewed, the developer fails to submit a satisfactory replacement performance guarantee; and

(3) The developer agrees to cease and desist all such work upon receipt of notification from the Township that the letter of credit will not be renewed until such time as a satisfactory replacement performance guarantee is submitted; and

(4) The developer shall execute any agreement(s) required by the Township Attorney confirming the conditions set forth herein prior to the Township's acceptance of said letter of credit.

C. A performance bond, cash, or a certified check shall be an acceptable form of performance guarantee. The performance bond, in which the owner shall be principal, shall be provided by an acceptable surety company licensed to do business in the State of New Jersey, or in lieu of the bond, cash or a certified check shall be deposited with the Township by payment to the Township Treasurer. The Township Treasurer shall issue a receipt for such cash deposits and shall cause such cash to be deposited in a bank named by the Township, in the name of the Township, to be retained as security for completion of all requirements and then be returned to the owner upon completion of all required work and expiration of the period of the guarantee, or, in the event of default on the part of the owner, to be used by the Township to pay the cost and expense of obtaining completion of all requirements. Every bond, whether cash or surety, shall contain a clause to the effect that a determination by the Township Engineer that the principal has defaulted in the performance of his obligation shall be binding and conclusive upon the surety and the principal.

D. Ten percent of the amount of the performance guarantee shall be deposited by the owner in cash with the Township. The remaining 90% may be in cash, a surety bond, or a letter of credit. In the event of default, the 10% fund herein mentioned shall be first applied to the completion of the requirements and the cash or the surety bond shall thereafter be resorted to, if necessary, for the completion of the requirements. The surety bond may recite the foregoing provisions.

E. Except as hereafter provided, the required improvements shall be at least 50% completed as to each category set forth in the performance guarantee within one year from the date of final approval, or by such time as 50% of the lots in the section in question have been conveyed, in any manner, by the applicant, whichever shall first occur. At least 75% of the remaining required improvements in each category shall be completed as set forth in the performance guarantee within 18 months from the date of final approval, or by such time as 75% of the lots in the section have been conveyed, whichever shall first occur. Such improvements shall be 100% completed and accepted by the Township within two years from the date of final approval, or at such time as all of the lots in the section in question have been conveyed in any manner by the applicant, whichever shall first occur. It is the intention of the Township Council that this requirement will provide to those living in each new section of a subdivision a lot that is as complete as possible with respect to tract and individual lot improvements.

F. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Township Council 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 installation as determined as of the time of the passage of the resolution.

G. If the required improvements are not completed or corrected in accordance with the performance guarantee, the developer 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. The Township shall also have all other remedies as may be lawfully available.

H. Completion of improvements; procedure for release. The release or partial release of performance guarantees shall be governed by the procedures set forth in N.J.S.A. 40:55D-53.

[Amended 3-5-2003 by Ord. No. 2003-11]

§ 470-31 Conditions for acceptance of improvements.

The approval of any application for development by the Township shall in no way be construed as acceptance of any street or drainage system, or any other improvement, nor shall such approval obligate the Township in any way to maintain or exercise jurisdiction over such street or drainage system or other improvement. No improvement shall be accepted by the Township Council unless and until all of the following conditions have been met:

A. The Township Engineer has certified in writing that the improvements are complete and that they comply with the requirements of this Land Development Ordinance.

B. The final application for development has been approved by the Planning Board; and

C. If required, pursuant to § 470-34, the owner has filed the required maintenance guarantee.

D. As-built plans for any development have been provided to the Township as directed by the Township Engineer.

§ 470-32 Performance guarantee estimate.

When, pursuant to § 470-29, a performance guarantee is required, a performance guarantee estimate shall be prepared by the Township Engineer setting forth all requirements as fixed by the Board and the estimated cost. The Board shall either approve or adjust this performance guarantee estimate.

§ 470-33 Inspections.

A. All improvements and utility installations shall be inspected during the time of their installations under the supervision of the Township Engineer to insure satisfactory completion.

B. In no case shall any paving work, including prime and seal costs, be done without permission from the Township Engineer. At least two days' notice shall be given to the Township Engineer prior to any such construction so that he or a qualified representative may be present at the time the work is to be done.

C. The Township Engineer shall be notified after each of the following phases of the work has been completed so that he or a qualified representative may inspect the work:

(1) Road subgrade.

(2) Curb and gutter forms.

(3) Curbs and gutters.

(4) Road paving.

(5) Sidewalk forms.

(6) Sidewalks.

(7) Drainage pipes and other drainage before back fillings.

(8) Street name sign.

(9) Sanitary sewers and/or septic tanks.

(10) Monuments.

D. Inspection fees.

(1) When an engineering inspection is carried out upon the notification of the developer pursuant to § 470-30H, the cost of such inspection shall be the responsibility of the owner.

(a) The owner shall deposit with the Township Treasurer at the time of notification pursuant to § 470-30G a sum equal to 5% of the amount of the performance guarantee estimate of the cost of on-tract improvements to be applied to payment of inspection costs.

(b) This deposit will be placed in a separate escrow account and treated in accordance with § 470-27B of this chapter.

(2) The cost of all other reasonable inspection and other professional expenses shall be the responsibility of the owner and shall be deducted from the professional fee escrow account of the owner pursuant to § 470-27 of this chapter.

§ 470-34 Requirement of maintenance guarantees.

A. The Board shall require, for the purpose of assuming the maintenance of contract improvement, the posting of a maintenance guarantee:

(1) As a condition of final site plan approval; or

(2) In the case of subdivision approval applications, before the recording of final subdivision plats; or

(3) As a condition to the issuance of a zoning permit pursuant to Article XIV of this chapter.

B. In the event that other governmental agencies or public utilities automatically will own the utilities installed, or the improvements are covered by a maintenance guarantee to another governmental agency, no maintenance guarantee shall be required.

C. The maintenance guarantee shall be in an amount to 15% of the cost of the improvement. The guarantee shall run for a period of two years.

D. Ten percent of the guarantee shall be cash. The remaining 90% may be in cash or a letter of credit, or a surety bond. The guarantee shall be posted upon release of the performance bond by the Township.

§ 470-35 Approval of performance and maintenance guarantees by Township Attorney.

A. The subdivider or developer shall present two copies of the performance guarantee, in an amount equal to the amount of the approved performance guarantee estimate, for approval as to form and execution by the Township Attorney. If the performance guarantee is a letter of credit, the letter of credit shall also be presented for approval.

B. The Township Attorney shall notify the Secretary of the Board prior to the time such guarantees are required under § 470-29 that the performance guarantee has been properly executed and can be added to the agenda.

C. The subdivider or developer shall present two copies of the maintenance guarantee for approval as to form and execution by the Township Attorney.

D. The Township Attorney shall notify the Secretary of the Board prior to the release of the performance guarantee that the maintenance guarantee has been properly executed and can be added to the agenda.