[Amended 4-2-2019 by Ord.
No. O-19-20]
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, the governing body shall require
that the developer furnish performance and maintenance guarantees
on properties to be dedicated to the Township or any other public
entity, which have not yet been installed, in order to assure the
ultimate installation and upkeep of the following:
(4) Curbs or other street borders.
(5) Sidewalks or other pedestrian accessways.
(8) Surveyor's monuments (as shown on the final map and as required by
N.J.S.A. 46:23-9.9).
(12)
Public improvements of open space.
(14)
Any grading necessitated by the preceding improvements.
B. 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.
C. 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.
(1) 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.
D. 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.
(1) The amount of a safety and stabilization guarantee for a development
with bonded improvements in an amount not exceeding $100,000 shall
be $5,000.
(2) The amount of a safety and stabilization guarantee for a development
with bonded improvements exceeding $100,000 shall be calculated as
a percentage of the bonded improvement costs of the development or
phase of development as follows: $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.
(3) 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.
(4) 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.
[Amended 4-2-2019 by Ord.
No. O-19-20]
A. 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.
B. 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.
C. 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:
(1) 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.
(2) 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.
(3) 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.
D. 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:
(1) For preparation of the developer's agreement.
(2) For review of initial performance guarantees and the preparation
of any initial resolutions in connection therewith.
(3) 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.
E. 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.
F. 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.
(1) 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.
(2) 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.
(3) The developer shall deposit a portion of the inspection fees as calculated
above as follows:
(a)
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.
(b)
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.
(4) 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.
G. 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.
H. Electrical, gas, telephone and all other utility installations installed
by utility companies shall not be subject to the inspection requirements
contained herein.
I. 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.
J. 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.
K. 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.
L. Approval of improvements.
(1) 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.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
M. 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.
N. 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.
O. Maintenance guarantee. No improvement shall be acceptable by the
governing body unless and until all of the following conditions have
been met:
(1) Maintenance guarantees shall be posted with the Township prior to
the release of performance guarantees and will cover the installation
of improvements being released.
(2) 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.
(3) 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.
(4) 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.
(5) 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:
(a)
Stormwater management basins.
(b)
In-flow and water quality structures within basins.
(c)
Any out-flow pipes and structures of a stormwater management
system.
(6) The maintenance guarantee shall be for a two-year period which shall
automatically expire at the end of the established term.
P. Developer's agreement. The developer shall enter into a developer's
agreement with the governing body prior to the signing and recording
of final major subdivision plats and as a condition of final site
plan approval. In the case of a site plan, the developer shall enter
into a developer's agreement with the governing body prior to commencement
of on-site/off-site improvements. This agreement shall be of a form
that is acceptable to the Township Attorney and Township Engineer.
The developer's agreement shall require that the developer agrees
to abide by the terms and conditions and the Board approval, construct
the required improvements in accordance with the approved plans, agree
to maintain the constructed improvements, including but not limited
to, payment of streetlighting charges, snow removal, maintenance of
storm drain, sewer and water facilities. The developer shall also
agree that in the event that improvements are not maintained, the
Township can utilize the cash portions of the performance guarantees
to immediately attend to such items.