Article VII Guarantees, Inspections and Off-Track Improvements

Sidewalks or other pedestrian accessways.

(6)

Street lighting.

(7)

Street trees.

(8)

Surveyor's monuments (as shown on the final map and as required by N.J.S.A. 46:23-9.9).

Water mains.

Sanitary sewers.

Drainage structures.

Public improvements of open space.

(13)

Community septic system.

(14)

Any grading necessitated by the preceding improvements.

As to site plans only, the developer shall be required to furnish performance and maintenance guarantees only for improvements to existing public facilities or facilities which will have off-site or off-tract effects. The installation of other on-site improvements and landscaping (other than those associated with buffers) shall be insured pursuant to the site plan approval procedure set forth in this chapter. The Township Engineer shall in his sole discretion determine whether any particular improvement shall be bonded in accordance with this provision.

Before the filing of a final subdivision plat or recording of minor subdivision deeds or as a condition of final site plan approval or as a condition of the issuance of a zoning permit, the governing body shall require that the developer furnish performance and maintenance guarantees in order to assure the ultimate installation and upkeep of privately owned perimeter buffer landscaping, as required by Township ordinance or as a condition of the approval. The developer has the option to provide separate bonding for these improvements as opposed to including the improvements referenced in Subsection A, hereinabove.

In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a "temporary certificate of occupancy guarantee," (TCOG) in favor of the Township in an amount equal to 120% of the cost of installation of only those improvements or items (including both private on-site and to be publicly dedicated) 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 above, which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. No same item may be included in multiple performance bonds. The scope and amount of the temporary certificate of occupancy guarantee shall be determined by the Municipal Engineer and accepted by resolution by the governing body. The temporary certificate of occupancy guarantee shall be released by the governing body 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 developer shall furnish to the Township a safety and stabilization guarantee, in favor of the Township. 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 Township 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 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 work has not recommenced within 30 days following the provision of written notice by the Township to the developer of the Township's intent to claim payment under the guarantee.

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.

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: $5,000 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.

The Township 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.

The Township 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.

§ 188-45 Off-tract improvements.

Purpose. This section insures a pro rata share allocation of the costs of those reasonable and necessary off-tract improvements necessitated or required by construction or improvements within such subdivision or development as authorized by Section 30 of the Municipal Land Use Law, N.J.S.A. 40:55D-42.

Definition and principles. An applicant may be required by the municipal agency as a condition of final subdivision and/or site plan approval to contribute or pay his pro rata share of the cost of providing those reasonable and necessary improvements located outside the property limits of the subdivision or development which are necessitated or required by construction or by improvements within such subdivision or development. Such improvements include, but are not limited to, water, sewage, drainage facilities, including land and easements and all items necessary to administer and maintain those public functions but shall not include general public improvements or facilities which benefit all or a substantial portion of the Township. Necessary improvements are those clearly and substantially related to the development in question. Interpretation of the requirement to either install or pay a pro rata share of off-tract improvements shall be interpreted in the context of the Township's authority as vested under the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.)

Cost allocation.

Full allocation. In cases where off-tract improvements are necessitated by the proposed development, and no other property owner(s) receive(s) a special benefit thereby, the applicant may be required, at his sole expense and as a condition of approval, to provide and install such improvements.

Proportionate allocation.

Where it is determined that properties outside the development will also be benefited by the off-tract improvement, the following criteria shall be utilized in determining the proportionate share of the cost of such improvements to the developer.

Allocation formula.

[1]

Drainage improvements. The applicant’s proportionate share of stormwater and drainage improvements, including the cost of all studies of drainage need or requirements, the purchase of land for easements, the installation, relocation or replacement of storm drains, culverts, catch basins, manholes, riprap, improved drainage ditches and appurtenances thereto, and installation, relocation or replacement of other storm drainage facilities or appurtenances associated herewith, shall be determined as follows:

The capacity and the design of the drainage system to accommodate stormwater runoff shall be based on the methods and standards consistent with this chapter, computed by the developer’s engineer and approved by the engineer of the municipal agency.

The capacity of the enlarged, extended, or improved system required for the development and areas outside of the developer’s tributary to the drainage system shall be determined by the developer’s engineer and shall be subject to the approval of the engineer of the municipal agency. The plans for the improved system shall be prepared by the developer’s engineer and the estimated cost of the enlarged system calculated by the engineer of the municipal agency. The pro rata share for the proposed improvement shall be computed as follows:

Total cost of enlargement or improvement	=	Capacity of enlargement or improvement (total capacity expressed in cubic feet per second
Developer’s cost		Development-generated peak rate of runoff expressed in cubic feet per second to be accommodated by the enlargement or improvement

[2]

Roadways and transportation facilities. The applicant’s proportionate share of street improvements, alignment, channelization, barriers, new or improved traffic signalization, signs, curbs, sidewalks, streetlighting, trees, utility improvements uncovered elsewhere, the construction or reconstruction of new or existing streets, and other associated street or traffic improvements shall be as follows:

The applicant shall provide the engineer of the municipal agency with the existing and anticipated future peak-hour flows for the off-tract improvements.

The applicant shall furnish a plan for the proposed off-tract improvement, which shall include the estimated peak-hour traffic generated by the proposed development and the proportion thereof which is to be accommodated by the proposed off-tract improvement. The ratio of the peak-hour traffic generated by the proposed development, which is to be accommodated by the off-tract improvement, to the future additional peak-hour traffic anticipated to impact the proposed off-tract improvement shall form the basis of the proportionate share. The proportionate shall be computed as follows:

Total cost of enlargement or improvement	=	Capacity of enlargement or improvement (peak-hour traffic)
Developer’s cost		Development peak-hour traffic to be accommodated by the enlargement or improvement

[3]

Sanitary sewers. The applicant’s proportionate share of distribution facilities, including the installation, relocation or replacement of collector, trunk and interceptor sewers, and associated appurtenances, shall be computed as follows:

The capacity and the design of the sanitary sewer system shall be based on the requirements and standards set forth in this chapter.

The Howell Township Municipal Utilities Authority Engineer shall provide the applicant with the existing and reasonably anticipated peak-hour flows, as well as capacity limits of the affected sewer system.

[c]

If the existing system does not have adequate capacity to accommodate the applicant’s flow, given existing and reasonably anticipated peak-hour flows, the pro rata share shall be computed as follows:

Total cost of enlargement or improvement	=	Capacity of enlargement or improvement [gallons per day (gpd)]
Developer’s cost		Development-generated gallons per day to be accommodated by the enlargement or improvement

[4]

Water supply. The applicant’s proportionate share of water distribution facilities, including the installation, relocation, or replacement of water mains, hydrants, valves, and associated appurtenances, shall be computed as follows:

The capacity and the design of the water supply system shall be based on the requirements and standards set forth in this chapter.

The Howell Township Municipal Utilities Authority Engineer shall provide the applicant with the existing and reasonably anticipated capacity limits of the affected water supply system in terms of average demand, peak demand, and fire demand.

[c]

If the existing system does not have adequate capacity as defined above to accommodate the applicant’s needs, the pro rata share shall be computed as follows:

Total cost of enlargement or improvement	=	Capacity of enlargement or improvement [gallons per day (gpd)]
Developer’s cost		Development-generated gallons per day to be accommodated by the enlargement or improvement

Escrow accounts.

Where the proposed off-tract improvement is to be undertaken at some future date, the monies required for the improvement shall be deposited in an interest-bearing account to the credit of the Township in a separate account until such time as the improvement is constructed.

If the off-tract improvement is not begun within 10 years of deposit, all monies and interest shall be returned to the applicant upon his request. An off-tract improvement shall be considered "begun" if the Township has taken legal steps to provide for design and financing of such improvement.

If the applicant does not request the return of the money within a period of one year, the money shall be placed in the Township’s general capital improvement fund and shall not be returnable to the applicant thereafter.

Redetermination upon completion of improvements.

Upon completion of off-tract improvements required pursuant to this section, the developer’s liability hereunder shall be recalculated in accordance with the actual, as compared with the estimated, cost of the improvements. To the extent that it shall decrease the amount thereof, the Township shall forthwith refund the amount of such decrease to the developer.

In the event the payment by the applicant provided for herein is less than his share of the actual cost of the off-tract improvements, then the applicant shall be required to pay the appropriate share of the cost thereof.

Referral to Township Council.

Where an application for development suggests the need for off-tract improvements, whether to be installed in conjunction with the development in question or otherwise, the municipal agency shall forward to the Township Council a list and description of all such improvements, together with a request that the Council determine and advise the municipal agency of the procedure to be followed in installation thereof, including timing. The municipal agency shall defer final action on the application for development until receipt of the Township Council's determination or the expiration of 90 days after the forwarding of such a list and description to the committee without determinations having been made, whichever comes first.

The Township Council, within 90 days after receipt of said list and description, shall determine and advise the municipal agency of the procedure to be followed and may suggest conditions of approval, if any, to adequately protect the Township. In the event that the municipal agency is required by statute to act on the application prior to receipt of the Township Council's determination as to installation and/or payment of pro rata share of off-tract improvements, it shall request the applicant to consent to an extension of time, within which to act, of sufficient duration to enable the Township Council to make the aforesaid determination. In the event that the applicant is unwilling to consent to the requested extension of time, the municipal agency shall, in its discretion, either itself determine the procedure to be followed in installation and/or payment of pro rata share of the aforesaid off-tract improvements or shall condition its approval upon the subsequent determination of the Township Council.

Implementation of off-tract improvements.

In all cases, applicants shall be required to enter into an agreement with the Township in regard to installation and/or payment of their pro rata share of off-tract improvements, in accordance with this chapter and any other ordinances, policies, rules and regulations of Howell Township, Monmouth County, the State of New Jersey, and any departments, authorities, or agencies thereof deemed necessary.

Where properties outside the subject tract will be benefited by the improvements, the Township Council may require the applicant to escrow sufficient funds in accordance with this chapter to secure the applicant's pro rata share of the eventual cost of providing future improvements and/or facilities based on the standards set forth herein.

General improvement.

Where properties outside the subject tract will benefit by the improvement, the Township Council may determine that the improvement is to be installed by the Township as a general improvement, the cost of which is to be borne as a general expense.

If the Township Council determines that the improvement shall be installed as a general improvement, the Council may direct the municipal agency to estimate, with the aid of the engineer of the municipal agency or such other persons who have pertinent information or expertise, the amount (if any) by which the total cost thereof will exceed the total amount by which all properties including the subject tract will be specifically benefited thereby, and the applicant shall be liable to the Township for such expense.

(c)

If the Township Council determines that the improvement shall be installed as a local improvement, all or a part of the cost of which is to be assessed against properties benefited thereby in proportion to the benefits conferred by the improvement in accordance with N.J.S.A. 40:56-1 et seq., the applicant may be required to sign an agreement acknowledging and agreeing to this procedure. In addition, the Township Council may require that the applicant be liable to the Township in addition to the amount of any special assessments against the subject property for benefits conferred by the improvement the difference between the total cost actually incurred and the total amount by which all properties, including the subject tract, are specially benefited by the improvements as may be determined by the Township.

If the Township Council determines that the improvement is to be installed by the applicant, such agreement may contain provisions consistent with the standards in this chapter and any other ordinances, rules, regulations, or policies of the Township of Howell, County of Monmouth, the State of New Jersey, and any departments, authorities, or agencies thereof with jurisdiction therein, whereby the applicant shall be reimbursed by the Township or otherwise, as a result of any participation fees, connection charges, charges paid in regard to developer’s agreements with other applicants, and the like; all in accordance with an agreement between the Township Council and the applicant.

In determining the procedures to be followed in the event of the submission of a list and request from the municipal agency, the Township Council shall be guided by the following:

The local trends in regard to the potential of development within the drainage or circulation area in question and the intensity of such development;

The risk or exposure that the neighboring areas are subject to in the event that required improvements are delayed;

(c)

The extent to which temporary measures may sufficiently alleviate the condition or conditions requiring the off-tract improvements and the likelihood that larger, regional or subregional facilities will be required in the future to serve the development tract and the general area of the Township in which same is located; and

(d)

The extent to which the health, safety and welfare of both present and future municipal residents depend upon the immediate implementation of the off-tract improvement.

§ 188-46 Guarantees and inspections.

[Amended 4-2-2019 by Ord. No. O-19-20]

No filing of final subdivision plat or recording of minor subdivision deeds or as a condition of final site plan approval or as a condition of the issuance of a zoning permit shall be approved by the governing body until all items required to be bonded (on site, off site and off tract) in the public interest, shall have been provided for by a performance guarantee accepted and approved by the governing body in accordance with the requirements of this section; and in addition thereto, the developer has delivered to the Township a certified check or money order in the amount of the inspection fees to be paid pursuant to Subsection F of this section.

A performance guarantee cost estimate shall be submitted to the Municipal Engineer as part of his subdivision, site plan or zoning permit review. The Municipal Engineer may review and update this estimate from time to time as required.

The proposed performance guarantee required for subdivision, site plan or zoning permit approval shall be submitted to the Township Engineer and Township Attorney for recommendations as to accuracy and form, then to the governing body for approval and acceptance by resolution. The subdivision, site plan or zoning permit approval shall not be deemed to be effective until the performance guarantee has been accepted and approved by the governing body. The performance guarantee shall consist of the following:

A performance guarantee cost estimate prepared by the Township Engineer. The total value of the performance guarantee to be submitted by the developer to the Township shall equal 120% of the performance guarantee cost estimate.

A performance bond in which the developer shall be principal and an acceptable surety company licensed to do business in the State of New Jersey shall be surety. The maximum value of the bond shall be 90% of the total value of the performance guarantee as hereinbefore described. In lieu of posting such a performance bond, the developer shall deposit with the Township cash or certified check made payable to the Township of Howell, in the full amount of the performance guarantee, or the developer shall post a letter of credit on a format approved by the Township Attorney for a maximum value of 90% of the total value of the performance guarantee as herein described.

If a performance bond or letter of credit is posted, as hereinbefore described, the remaining 10% of the total value of the performance guarantee, as hereinbefore defined, shall be paid in the form of cash or certified check made payable to the Township of Howell. In the event of default, the 10% cash fund herein mentioned shall be first applied to the completion of required improvements and the performance bond shall thereafter be resorted to, if necessary for the completion of the improvements.

For legal services provided by the Township Attorney in connection with a development application, the developer shall pay fees to the Township for the following as set forth in Chapter 139, Fees:

For preparation of the developer's agreement.

For review of initial performance guarantees and the preparation of any initial resolutions in connection therewith.

For the review of subsequent, substituted, reduced or modified performance guarantees, review of maintenance guarantees and safety and stabilization guarantees and the review of any amendments or extensions to letters of credit, together with any required resolutions.

For services provided by the Township Planner in connection with review of request for conceptual zone changes which will result in an application for a major subdivision or site plan approval or in conjunction with an application for a major subdivision, the applicant shall deposit with the Township an amount as set forth in Chapter 139, Fees. The Township Planner's fee shall be billed against such deposit until the review is completed or until an application is either approved or rejected. If, prior to action by the Planning Board with respect to an application for which a deposit for planner's fees has been made with the Township, or if during the course of review of conceptual requests the amount on deposit is reduced to zero, the applicant shall immediately deposit with the Township an additional amount as set forth in Chapter 139, Fees. Any money not utilized for the purpose for which it was deposited shall be returned to the applicant, less a fee as set forth in Chapter 139, Fees, which shall be in lieu of all administrative and custodial expenses.

Prior to beginning construction, the developer shall arrange for a preconstruction conference between the developer, contractor and Municipal Engineer. All improvements and utility installation shall be inspected during the time of their installation under the supervision of the Municipal Engineer to insure satisfactory completion. The Municipal Engineer shall be notified by the developer five days in advance of the start of construction. The cost of said inspection shall be the responsibility of the developer. The developer shall reimburse the municipality for all reasonable inspection fees calculated pursuant to this subsection by submitting a certified check or bank money order to the Township. This fee shall be in addition to the amount of performance guarantee and all application fees as outlined herein and computed as follows: The construction inspection fee is to be calculated from the following tabulation based on the estimated cost of constructing the improvements, which estimate is to be prepared by the Municipal Engineer.

Inspection fees. Inspection fees shall not exceed the greater of $500 or 5% of the cost of the on-site and off-site bonded improvements unless there are extraordinary circumstances requiring a different amount and, with respect to private site improvements, no more than 5% of their costs.

The Township is permitted to require the developer to deposit additional funds, provided that a specific written request is made by and signed by the Township Engineer. That request will inform the developer of the need for the additional inspections and detail the items or undertakings that require inspections. It will provide an estimate of the time period for the inspection and set forth an estimate of the cost of performing the inspections.

The developer shall deposit a portion of the inspection fees as calculated above as follows:

For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees.

For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated 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 25% of the reasonably anticipated fees.

In the event that final approval is by stages or sections of development pursuant to N.J.S.A. 40:55D-38, the provisions of this section shall be applied by stage or section.

No work shall be done without permission from the Municipal Engineer. No underground installation shall be covered until inspected and approved. The Municipal Engineer's office shall be notified after each of the following phases of the work have been completed so that he may inspect the work: road subgrade, curb and gutter forms; curbs and gutters; road paving (after each coat in the case of priming and sealing); drainage pipes and other drainage structures before backfilling; shade trees and planting strips; street name signs; and monuments.

Electrical, gas, telephone and all other utility installations installed by utility companies shall not be subject to the inspection requirements contained herein.

Occupancy permits for residential subdivisions or site plans will be issued only when the installation of curbs, utilities, functioning water supply and sewage treatment facilities, necessary storm drainage to insure proper drainage of the lot and surrounding land, grading of lots, soil stabilization, base course for the street and driveway, and sidewalks are installed to serve the lot and structure for which the permit is requested. Streets shall not receive surface course paving until all heavy construction is completed. Shade trees shall not be planted until all grading and earth moving is completed. Seeding of grass areas shall be the final operation, subject to appropriate soil erosion control measures.

Inspection by the Municipal Engineer of the installation of improvements and utilities shall not subject the municipality to liability for claims, suits, or liability of any kind that may arise because of defects or negligence, it being recognized that the responsibility to provide proper utilities and improvements and to maintain safe conditions at all times on all parts of the tract whether construction is waiting to start, is in progress, or is completed or any combination of conditions on all or part of the tract is upon the developer and his contractors or subcontractors, if any.

After completing the construction of the improvements covered by the performance guarantee, the developer shall prepare two sets of the improvements and utility plans and the profiles amended to read "as constructed." The "as constructed" plans shall also be submitted on a format acceptable to the Township Engineer.

Approval of improvements.

The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the governing body by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation as determined at of the time of the passage of the resolution.

When bonded improvements have been substantially completed, the obligor shall notify the Township Clerk in writing by certified mail of the completion of the aforesaid improvements and shall send a copy thereof to the Township Engineer. The Township Engineer shall inspect all of the aforesaid improvements and file a report with the Township Council and the obligor within 45 days of the receipt of the notice from the obligator.

Within 45 days after receipt of the Township Engineer's report, the Township Council, by resolution, shall accept or reject the bonded improvements, grant partial approval or withhold approval. Where partial approval is granted, the obligor shall be released from all liability pursuant to its performance bond except for that portion adequately sufficient to secure the improvements not yet approved provided that 30% of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

The safety and stabilization guarantee posted may be retained to ensure completion and acceptability of 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.

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 a release would reduce the amount held by the Township below 30%.

(6)

If the developer has furnished a safety and stabilization guarantee, the Township may retain cash equal to the amount of the remaining safety and stabilization guarantee.

If any portion of the required improvements is rejected, the Township Engineer and/or Township Council may require the obligor to complete such improvements and, upon completion, the same procedure of notification, as set forth in this section, shall be followed.

The approval of any site plan or subdivision under this chapter by the governing body shall in no way be construed as acceptance of any street, drainage system, or other improvements required by this chapter, nor shall such site plan or subdivision approval obligate the Township in any way to maintain or exercise jurisdiction over such street, drainage system or other improvement. Acceptance of any street, drainage system or other improvement shall be implemented only by favorable action by the governing body.

Maintenance guarantee. No improvement shall be acceptable by the governing body unless and until all of the following conditions have been met:

Maintenance guarantees shall be posted with the Township prior to the release of performance guarantees and will cover the installation of improvements being released.

The Municipal Engineer shall have certified in writing that all the improvements are complete and that they comply fully with the requirements of this chapter and of other applicable local ordinances.

Provision for a maintenance guarantee to be posted with the governing body for a period not to exceed two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the improvement. 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.

All maintenance guarantees shall be formally released by the Township Council by resolution. Thirty days prior to the release of a maintenance guarantee, the Township Engineer shall have inspected the improvement for which the maintenance guarantee had previously been posted and shall certify to the Township Council, in writing, that the improvement is free of defects and that the maintenance bond may be released. If any defects are found by the Engineer during the course of his or her inspection, then, in such event, the Township Engineer shall present a claim against the maintenance guarantee for the repair/replacement of the improvement.

The developer shall post a maintenance guarantee for the private site improvements in an amount equal to 15% of the costs of the installation of the following site improvements:

Stormwater management basins.