[Amended 11-24-1992 by Ord. No. 92-23; 6-26-2018 by Ord. No. 18-14]
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, the Borough may require, and shall accept in accordance with the standards adopted by this section, and regulations adopted pursuant to N.J.S.A. 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 Subsection A(1) and (2) of this section. For any successor developer, 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 Borough Council shall accept, in accordance with the standards adopted by this section 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 Subsection A(1) and (2) of this section.
(1)
Performance guarantee.
(a)
The developer shall furnish a performance guarantee in favor
of the Borough in an amount not to exceed 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 Borough Engineer, according to the method of calculation set
forth in N.J.S.A. 40:55D-53.4, for the following improvements as shown
on the approved plans or plat: streets, pavement, gutters, curbs,
sidewalks, streetlighting, street trees, surveyor's monuments, as
shown on the final map and required by the Map Filing Law (N.J.S.A.
46: 26B-1 through N.J.S.A. 46:26B-8), water mains, sanitary sewers,
community septic systems, drainage structures, public improvements
of open space, and any grading necessitated by the preceding referenced
improvements. The Borough 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.
(b)
The Borough 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. At the developer's option, a separate
performance guarantee may be posted for the privately owned perimeter
buffer landscaping.
(c)
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," in favor of the Borough in an amount equal to 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 Subsection A(1)(a) of this section, 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 Borough Engineer. At no time may the Borough 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 Borough Engineer 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)
Safety and stabilization guarantee.
[1]
A developer shall furnish to the Borough a safety and stabilization
guarantee, in favor of the Borough. 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 Borough 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:
[a]
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
[b]
Work has not recommenced within 30 days following
the provision of written notice by the Borough to the developer of
the Borough's intent to claim payment under the guarantee. The Borough
shall not provide notice of its intent to claim payment under a safety
and stabilization guarantee until a period of at least 60 days has
elapsed during which all work on the development has ceased for reasons
other than force majeure. The Borough shall provide written notice
to a developer by certified mail or other form of delivery providing
evidence of receipt.
[2]
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 Borough 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,
or upon the Borough 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.
(2)
Maintenance guarantee.
(a)
The developer shall post with the Borough, prior to the release of a performance guarantee required pursuant to Subsection A(1)(a), Subsection A(1)(b), or both Subsections A(1)(a) and A(1)(b) of this section, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.
(b)
If required, the developer shall post with the Borough, upon
the inspection and issuance of final approval of the following private
site improvements by the Borough Engineer, a maintenance guarantee
in an amount not to exceed 15% of the cost of the installation of
the following private site improvements: stormwater management basins,
inflow and water quality structures within the basins, and the outflow
pipes and structures of the stormwater management system, if any,
which cost shall be determined by the Municipal Engineer according
to the method of calculation set forth in N.J.S.A. 40:55D-53.4.
(c)
The term of the maintenance guarantee shall be for a period
not to exceed two years and shall automatically expire at the end
of the established term.
(3)
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 Borough for such utilities or improvements.
B.
The time allowed for installation of the bonded improvements for
which the performance guarantee has been provided may be extended
by the Borough 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 the installation which cost shall be determined
by the Borough Engineer according to the method of calculation set
forth in N.J.S.A. 40:55D-53.4 as of the time of the passage of the
resolution.
C.
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 Borough for the reasonable
cost of the improvements not completed or 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 be subject to the public bidding requirements of the Local Public
Contracts Law, N.J.S.A. 40A:11-1 et seq.
D.
Improvement report.
(1)
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 Borough Clerk, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section, 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 Borough 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 Borough Engineer shall inspect all bonded improvements covered by 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.
(2)
The list prepared by the Borough 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.
(3)
The report prepared by the Borough 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 Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section.
E.
Approval or rejection of improvements.
(1)
The Borough Council, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Borough 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 Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section. 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 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 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.
(2)
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. 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 Borough 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 70% of the total amount of the performance guarantee, then the Borough may retain 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 Borough below 30%
(3)
If the Borough Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection D of this section within 45 days from receipt of the request, the obligor may apply to the 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 attorneys' fees, may be awarded to the prevailing party. If the Borough Council fails to approve or reject the bonded improvements determined by the Borough Engineer to be complete and satisfactory or reduce the performance guarantee 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 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 Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section; and the cost of applying to the court, including reasonable attorneys' fees, may be awarded to the prevailing party.
(4)
In the event that the obligor has made a cash deposit with the Borough
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 Borough may retain cash equal to the amount of the remaining
safety and stabilization guarantee.
F.
If any portion of the required bonded improvements is rejected, the
Borough Engineer 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.
G.
Nothing herein, however, shall be construed to limit the right of
the obligor to contest by legal proceedings any determination of the
Borough Council or the Borough Engineer.
H.
Fees and escrow.
(1)
The obligor shall reimburse the Borough for reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements, which fees shall not exceed the sum of the amounts set forth in Subsection H(1)(a) and (b) of this section. The Borough may require the developer to post the inspection fees in escrow in an amount:
(2)
For those developments for which the inspection fees total less than
$10,000, fees may, at the option of the developer, be paid in two
installments. The initial amount deposited in escrow by a developer
shall be 50% of the inspection fees. When the balance on deposit drops
to 10% of the inspection fees because the amount deposited by the
developer has been reduced by the amount paid to the Borough Engineer
for inspections, the developer shall deposit the remaining 50% of
the inspection fees.
(3)
For those developments for which the inspection fees total $10,000
or greater, fees may, at the option of the developer, be paid in four
installments. The initial amount deposited in escrow by a developer
shall be 25% of the inspection fees. When the balance on deposit drops
to 10% of the inspection fees because the amount deposited by the
developer has been reduced by the amount paid to the Borough Engineer
for inspection, the developer shall make additional deposits of 25%
of the inspection fees.
(4)
If the Borough determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to Subsection H(1)(a) and (b) of this section, is insufficient to cover the cost of additional required inspections, the Borough may require the developer to deposit additional funds in escrow, provided that the Borough delivers to the developer a written inspection escrow deposit request, signed by the Borough 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.
I.
In the event that final approval is by stages or sections of development
pursuant to N.J.S.A. 40:55D-38(a), the provisions of this section
shall be applied by stage or section.
J.
To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guarantee required pursuant to Subsection A of 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 Borough Engineer.
