A.
Prior to the granting of final approval, the subdivider shall have installed or furnished performance guaranties as set forth in § 350-12B of this article for the ultimate installation of the improvements described below. All improvements shall be subject to approval and inspection by the Borough Engineer, who shall be notified by the developer at least seven days prior to the start of construction of any improvement. No underground installation shall be covered until inspected and approved. The following improvements will be required, except where this chapter specifically waives the requirement or when the Planning Board waives the requirement by specific resolution in conjunction with hardship, peculiar situations or special development provisions:
B.
Performance and maintenance guaranties. As a condition
for final plat approval, the Board shall require and accept in accordance
with the standards of this chapter for the purpose of assuring the
installation and maintenance of improvements:
(1)
A performance guaranty, the term of which shall not
exceed two years, in favor of the Borough in an amount not to exceed
120%, 10% of which shall be in cash, of the cost of installation for
improvements, if deemed necessary or appropriate, including: streets,
grading, pavement, gutters, curbs, sidewalks, streetlighting, shade
trees, surveyor monuments, water mains, culverts, storm sewers, sanitary
sewers or other means of sewage disposal, drainage structures, erosion
control and sedimentation control devices and public improvements
of open space. The cost of installation of such improvements shall
be determined by the Borough Engineer based upon documented construction
costs for public improvements prevailing in the general area of the
Borough of Alpha. The developer may appeal the Borough Engineer's
estimate to the Borough Council, which shall decide such appeal within
45 days of receipt of such appeal, in writing, by the Borough Clerk.
The Borough Engineer shall prepare an itemized cost estimate of the
improvements covered by the performance guaranty, which itemized cost
estimate shall be appended to each performance guaranty posted by
the obligor.
(2)
A maintenance guaranty to be posted with the governing
body for a period of two years after final acceptance of the improvement,
in the amount of 15% of the total cost of the improvement, which cost
shall be determined by the Borough Engineer based upon documented
construction cost for public improvements prevailing in the general
area of the Borough. 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 guaranty
to another governmental agency, no performance or maintenance guaranty,
as the case may be, shall be required by the Borough for such utilities
or improvements.
(3)
Although it is not required that the maintenance guaranty required by Subsection B(2) above be in cash, any other form of acceptable performance guaranty may be posted, and although it is not required that more than 10% of a performance guaranty required by virtue of Subsection B(1) above be in cash, the applicant may, at his option, provide some or all of a maintenance guaranty in cash or more than 10% of a performance guaranty in cash.
(4)
The approving authority shall accept a performance
guaranty or maintenance guaranty which is in the form of an irrevocable
letter of credit if it:
(b)
Is issued by a banking or savings institution
authorized to do and doing business in this state;
(c)
Is for a period of time of at least one year;
and
(d)
Permits the Borough to draw upon the letter
of credit if the obligor fails to furnish another letter of credit
which complies with the provisions of this subsection, 30 days or
more in advance of the expiration date of the letter of credit or
such longer period in advance thereof as is stated in the letter of
credit.
(5)
The cost of installation of such improvements shall
be determined by the Borough Engineer based upon documented construction
costs for public improvements prevailing in the general area of the
Borough of Alpha. The developer may appeal the Borough Engineer's
estimate to the Borough Council, which shall decide such appeal within
45 days of receipt of such appeal, in writing, by the Borough Clerk.
The Borough Engineer shall prepare an itemized cost estimate of the
improvements covered by the performance guaranty, which itemized cost
estimate shall be appended to each performance guaranty posted by
the obligor.
(6)
The form of the guaranty shall be as approved by the
Borough Attorney, and the amount of the guaranty shall be as determined
by the Borough Engineer.
(7)
The applicant shall assume all liability during construction
of such improvements and until such time as the improvements are accepted
by the Borough of Alpha.
(8)
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 Borough Council, in writing, by certified mail, addressed in
care of the Alpha Borough Clerk, that the Borough Engineer prepare,
in accordance with the itemized cost estimate prepared by the Borough
Engineer and appended to the performance guaranty, a list of all uncompleted
or unsatisfactory completed improvements. If such a request is made,
the obligor shall send a copy thereof to the Borough Engineer. The
request shall indicate which improvements have been completed and
which improvements remain uncompleted in the judgment of the obligor.
Thereupon, the Borough Engineer shall inspect all improvements covered
by the obligor's request and shall file a detailed list and report,
in writing, with the Borough Council and shall simultaneously send
a copy thereof to the obligor not later than 45 days after receipt
of the obligor's request. The list prepared by the Borough Engineer
shall state, in detail, with respect to each 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 improvement determined
to be unsatisfactory. The report prepared by the Borough Engineer
shall identify each improvement determined to be complete and satisfactory,
together with a recommendation as to the amount of reduction to be
made in the performance guaranty relating to the completed and satisfactory
improvement, in accordance with the itemized cost estimate prepared
by the Borough Engineer and appended to the performance guaranty.
(9)
The Borough Council, by resolution, shall either approve
the improvements determined to be complete and satisfactory by the
Borough Engineer, or reject any or all of these 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
guaranty relating to the improvements accepted, in accordance with
the itemized cost estimate prepared by the Borough Engineer and appended
to the performance guaranty. This resolution shall be adopted not
later than 45 days after receipt of the list and report prepared by
the Borough Engineer. Upon adoption of the resolution by the Borough
Council, the obligor shall be released from all liability pursuant
to its performance guaranty, with respect to those approved improvements,
except for that portion adequately sufficient to secure completion
or correction of the improvements not yet approved, provided that
30% of the amount of the performance guaranty posted may be retained
to ensure completion and acceptability of all improvements.
(10)
If the Borough Engineer fails to send or provide
the list and report as requested by the obligor within 45 days from
receipt of the request, the obligor may apply to the Superior Court
in a summary manner for an order compelling the Borough 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.
(11)
If the Borough Council fails to approve or reject
the improvements determined by the Borough Engineer to be complete
and satisfactory or reduce the performance guaranty for the complete
and satisfactory improvements within 45 days from the receipt of the
Borough Engineer's list and report, the obligor may apply to the Superior
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 guaranty for the approvable complete
and satisfactory improvements in accordance with the itemized cost
estimate prepared by the Borough Engineer and appended to performance
guaranty, and the cost of applying to the Court, including reasonable
attorney's fees, may be awarded to the prevailing party.
(12)
In the event that the obligor has made a cash
deposit with the Borough as part of the performance guaranty, then
any partial reduction granted in the performance guaranty shall be
applied to the cash deposit in the same proportion as the original
cash deposit bears to the full amount of the performance guaranty.
(14)
If the required improvements are not completed
or corrected in accordance with the performance guaranty, the obligor
and surety, if any, shall be liable thereon to the Borough for the
reasonable cost of the improvements not completed or not corrected,
and the Borough may, either prior to or after the receipt of the proceeds
thereof, complete such improvements. Such completion or correction
of improvements shall not be subject to the public bidding requirements
of the Local Public Contracts Law (N.J.S.A. 40A:11-1 et seq.), provided
that no public moneys are expended for the completion or correction.
(15)
If the approving authority includes, as a condition
of approval of an application for development, the installation of
streetlighting on a dedicated public street connected to a public
utility, upon notification, in writing, by the applicant to the approving
authority and the Borough Council that the streetlighting on such
dedicated public street has been installed and accepted for service
by the public utility and that certificates of occupancy have been
issued for at least 50% of the dwelling units and 50% of the floor
area of the nonresidential uses on the dedicated public street or
portion thereof, the Borough shall, within 30 days following receipt
of such notification, make appropriate arrangements with the public
utility for, and assume the payment of, the costs of the streetlighting
on the dedicated public street on a continuing basis. Compliance by
the Borough with the provisions of this subsection shall not be deemed
to constitute acceptance of the street by the Borough.
C.
Builders' agreement and inspection fees. Prior to
any construction, a written agreement between the subdivider and the
Borough shall be executed, which agreement shall set forth the following:
(1)
All the terms and conditions under which improvements
are to be installed and establishing a schedule of completion dates
and period for completion of all improvements, which period shall
not exceed two years.
(2)
The agreement shall also provide for the deposit with
the Borough of inspection fees equal to 5% of the cost of all improvements.
Any unexpended portion of the inspection fees shall be returned to
the subdivider, and the subdivider shall reimburse the Borough for
inspection fees which exceed the 5%.
(3)
Damage to other property. In installing improvements,
the developer shall avoid causing damage to the property of the Borough
of Alpha or of others and shall assume responsibility for all such
damage caused by his work.
(4)
Incorporate all of the terms and conditions of approval
imposed by the Planning Board. Implicit in every preliminary approval
and part of each such agreement shall be the agreement of the developer
to:
D.
As-built plans. At the completion of the subdivision
construction and at the time of the request for the release of the
performance, the applicant shall provide as-built plans. These plans
shall indicate the horizontal and vertical location of all of the
proposed items of construction. These items shall include but are
not limited to the following:
(2)
Ties to all sanitary sewer house connections where
the same cross the roadway.
(3)
The applicant shall file with the Borough Clerk as-built
plans and profiles of all utilities and roads as noted above. Two
Mylar reproductions and three black-and-white prints of the plan shall
be filed. The Clerk shall retain one Mylar reproduction and one print
and forward one print to the Planning Board and one Mylar reproduction
and one print to the Borough Engineer.
A.
General. Prior to the granting of final approval,
the subdivider shall have installed or made cash payments toward the
ultimate installation of off-site improvements and in accordance with
the standards and conditions governing on-site improvements. Off-site
improvements herein shall include but not be limited to installation
of new improvements and extension and modifications of the existing
improvements.
B.
Estimate of cost and benefits. If an off-site improvement
is required, the Planning Board shall, with the aid of the Borough
Engineer and such other persons as have pertinent information or expertise,
estimate the cost of the improvement and the amount by which all properties
to be serviced thereby, including the subdivider's property, will
be specially benefited therefrom.
C.
Manner of construction. When those estimates are received,
the Borough Council shall then decide whether the off-site improvement
is to be constructed by the Borough as a general improvement, or by
the Borough as a local improvement, or by the subdivider under a formula
providing for partial reimbursement by the Borough for benefits to
properties other than the subdivision.[1]
D.
Amount of contribution. When this has been determined,
the subdivider may be required to provide, as a condition for final
approval of the subdivision, a cash deposit to the Borough of one
of the following amounts:
(1)
If the improvement is to be constructed by the Borough
as a general improvement, an amount equal to the difference between
the estimated cost of the improvement and the estimated total amount,
if less, by which all properties to be serviced thereby, including
the subdivision property, will be specially benefited by the off-site
improvement;
(2)
If the improvement is to be constructed by the Borough as a local improvement, then, in addition to the amount referred to in Subsection D(1), the estimated amount by which the subdivision will be specially benefited by the off-site improvement; or
(3)
If the improvement is to be constructed by the subdivider,
an amount equal to the estimated cost of the off-site improvement,
less an offset for benefits to properties other than the subdivision.
E.
Allocation of costs. The allocation of costs shall
be determined in accordance with the following:
(1)
The Planning Board may consider the total cost of
the off-site improvements, the benefits conferred upon the subdivision,
the needs created by the subdivision, population and land use projections
for the general areas of the subdivision and other areas to be served
by the off-site improvements, the estimated times of construction
of off-site improvements and the conditions and periods of usefulness,
which periods may be based upon the criteria of N.J.S.A. 40A:2-22.
The Planning Board may further consider the criteria set forth below.
(2)
Road, curb and sidewalk improvements may be based
upon the anticipated increase of traffic generated by the subdivision.
In determining such traffic increase, the Planning Board 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 subdivision and the anticipated benefit thereto.
(3)
Drainage facilities may be based upon the percentage
relationship between the subdivision acreage and the acreage of the
total drainage basins involved.
(4)
Sewerage facilities may be based upon the proportion
that the subdivision's total anticipated volume of sewage effluent
bears to the existing capacity of existing and projected sewage disposal
facilities, including but not limited to lines and other appurtenances
leading to and servicing the subdivision. The Planning Board may also
consider types of effluent and particular problems requiring special
equipment or added costs for treatment.
(5)
Water supply and distribution facilities may be based
upon the added facilities required by the total anticipated water
use requirements of the subdivision.
F.
Payment of allocated cost.
(1)
The estimated cost of the off-site improvement allocated
to the subdivider, if deposited in cash, shall be paid by the subdivider
to the Borough Treasurer, who shall provide a suitable depository
therefor; and such funds shall be used only for the off-site improvements
for which they are deposited or improvements serving the same purpose,
unless such improvements are not initiated by the Borough within a
period of 10 years from the date of payment, after which time said
funds so deposited shall be returned, together with accumulated interest
or other income thereon, if any.
(2)
In the event that the payment by the subdivider to
the Borough Treasurer provided for herein is less than its share of
the actual cost of the off-site improvements, then it shall be required
to pay its appropriate share of the cost thereof.
(3)
In the event that the payment by a subdivider to the
Borough Treasurer provided for above is more than its appropriate
share of the actual cost of installation of the off-site improvements,
it or its successor or assigns shall be repaid an amount equal to
the difference between the deposit and its share of the actual cost.
(4)
If the subdivider shall deem that any of the amounts
so estimated by the Planning Board are unreasonable, it may challenge
them and seek to have them revised in appropriate proceedings brought
to compel subdivision approval.
(5)
If the subdivider and the Borough cannot agree with
respect to the subdivider's appropriate share of the actual cost of
the off-site improvement or the determination made by the officer
or board charged with the duty of making assessments as to special
benefits, if the off-site improvement is constructed as a local improvement,
the dispute shall be decided in an appropriate judicial proceeding
or proceedings.
G.
Assessment of properties. Upon receipt from the subdivider
of its allocated share of the costs of the off-site improvements,
the Borough may adopt a local improvement assessment ordinance for
the purpose of construction and installation of the off-site improvements
based upon the actual cost thereof. Any portion of the cost of the
improvements not defrayed by a deposit by a subdivider may be assessed
against benefiting property owners by the Borough. Any assessments
for benefits conferred made against the subdivider or its successors
in interest shall be first offset by a pro rata share credit of the
allocated costs previously deposited with the Borough Treasurer pertaining
thereto. The subdivider, or his successors in interest, shall not
be liable for any part of an assessment for such improvements unless
the assessment exceeds its pro rata share credit for its deposit,
and then only to the extent of the deficiency.
H.
Credit for work performed. In the event that the subdivider,
with the Borough's consent, decides to install and construct the off-site
improvement, or any portion thereof, the certified cost shall be treated
as a credit against any future assessment for that particular off-site
improvement, or portion thereof, constructed by the Borough in the
same manner as if the subdivider had deposited its apportioned cost
with the Borough Treasurer, as provided herein.
I.
Installation of improvements by applicant.
(1)
At the discretion and option of the Borough, the Borough
may enter into a contract with the subdivider, providing for the installation
and construction of the off-site improvements by the subdivider upon
contribution by the Borough of the remaining unallocated portion of
the cost of the off-site improvement.
(2)
In the event that the Borough so elects to contribute
to the cost and expense of installation of the off-site improvements
by the subdivider, the portion contributed by the Borough shall be
subject to possible certification and assessment as a local improvement
against benefiting property owners in the manner provided by law,
if applicable.
J.
Design standards. Should the subdivider and the Borough
enter into a contract for the construction and erection of the off-site
improvements to be done by the subdivider, it shall observe all requirements
and principles of the land subdivision and other ordinances in the
design of such improvements.
