[Amended 9-18-1978 by Ord. No. 78-22; 6-25-1981 by Ord. No.
81-19; 2-22-2018 by Ord. No. 18-01]
A.
Before recording 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 pursuant to N.J.S.A. 40:55D-65,
the Township, Planning Board, or Zoning Board of Adjustment may require
and shall accept, in accordance with the standards adopted herein,
for the purpose of assuring the installation and maintenance of certain
on-tract improvements:
(1)
The furnishing of a performance guaranty in favor of the Township
of Bridgewater in an amount equal to 120% of the cost 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 developer
and approved by the Municipal 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, street lighting, street trees, surveyor's monuments,
as shown on the final map and required by the Map Filing Law, P.L.
1960, c. 141,[1] water mains, sanitary sewers, community septic systems,
drainage structures, public improvements of open space, and any grading
necessitated by the preceding improvements. The performance guaranty
may also be required to include, at the discretion of the Township,
Planning Board or Zoning Board of Adjustment, a guaranty for the installation
of privately owned perimeter buffer landscaping. At the developer's
option, a separate performance guaranty may be posted for the privately
owned perimeter buffer landscaping. The developer shall prepare an
itemized cost estimate of the improvements covered by the performance
guaranty for review and approval by the Municipal Engineer, which
improvements shall be appended to each performance guaranty posted
by the obligor.
[1]
Editor's Note: See N.J.S.A. 46:26B-1 et seq.
(2)
The developer shall post with the Township, prior to the release
of the performance guaranty, a maintenance guaranty in an amount equal
to 15% of the cost of the installation of the improvements covered
under the performance guaranty, along with 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 itemized cost shall
be determined by the developer and approved by the Municipal Engineer
according to the method of calculation set forth in N.J.S.A. 40:55D-53.4.
The term of the maintenance guaranty shall be for a period not to
exceed two years and shall automatically expire at the end of the
established term.
(3)
The furnishing of a safety and stabilization guaranty in favor
of the Township of Bridgewater to ensure that the Township has an
adequate guaranty to return the property that has been disturbed to
a safe and stable condition or otherwise implement measures to protect
the public from access to an unsafe or unstable condition. The Township
shall be permitted to access the guaranty when 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 municipality
to the developer of the municipality's intent to claim payment under
the guaranty. At the developer's option, the safety and stabilization
guaranty may be included as a line item for safety and stabilization
in the performance guaranty rather than in the form of a separate
guaranty. The amount of the safety and stabilization guaranty shall
be calculated pursuant to N.J.S.A. 40:55D-53.4 as follows:
B.
The time allowed for installation of the bonded improvements for
which the performance guaranty has been provided may be extended by
the governing body by resolution. As a condition or part of any such
extension, the amount of any performance guaranty 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 by the developer and approved
by the Municipal 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 guaranty, the obligor and surety,
if any, shall be liable thereon to the Township for the reasonable
cost of the improvements not completed or corrected, and the Township
may, either prior to or after the receipt of the proceeds thereof,
complete such improvements.
D.
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 notify the governing
body, in writing, by certified mail addressed in care of the Municipal
Clerk, of the completion or substantial completion of bonded improvements
and shall send a copy thereof to the Municipal 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 Municipal Engineer shall inspect all bonded improvements
of which such notice has been given and shall file a detailed report,
in writing, with the governing body, indicating either approval, partial
approval or rejection of such improvements with a statement of reasons
for any rejection. The cost of the improvements as approved or rejected
shall be set forth.
E.
The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Municipal 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 guaranty relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal 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 Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guaranty 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 guaranty and safety and stabilization guaranty posted may be retained to ensure completion and acceptability of all improvements. The safety and stabilization guaranty shall be reduced by the same percentage as the performance guaranty is being reduced at the time of each performance guaranty reduction. For the purpose of releasing the obligor from liability pursuant to its performance guaranty, the amount of the performance guaranty attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate which formed the basis of the performance guaranty and appended to the performance guaranty 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 guaranty, then the municipality may retain 30% of the amount of the total performance guaranty and safety and stabilization guaranty to ensure completion and acceptability of bonded improvements, as provided above, except that any amount of the performance guaranty attributable to bonded improvements for which a temporary certificate of occupancy guaranty has been posted shall be released from the performance guaranty even if such release would reduce the amount held by the municipality below 30%.
F.
If any portion of the required improvements is rejected, the approving
authority 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.
G.
Nothing herein, however, shall be construed to limit the right of
the obligor to contest by legal proceedings any determination of the
governing body or the Township Engineer.
H.
The obligor shall reimburse the municipality for reasonable inspection
fees paid to the Municipal Engineer for the foregoing inspection of
the improvements, which fees shall not exceed the sum of the amount
set forth in N.J.S.A. 40:55D-53. The municipality may require the
developer to post the inspection fees in escrow in an amount calculated
as follows: except for extraordinary circumstances, the greater of
$500 or 5% of the cost of improvements subject to a performance guaranty;
plus an amount not to exceed 5% of the cost of private site improvements
not subject to a performance guaranty, which cost shall be determined
pursuant to N.J.S.A. 40:55D-53.4. If the Township determines that
the amount in escrow for the payment of inspection fees, as calculated
herein, is insufficient to cover the cost of additional required inspections,
the Township may require the developer to deposit additional funds
in escrow provided that the Township delivers to the developer a written
inspection escrow deposit request 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 Subsection a of Section 29 of the Municipal Land Use Law
(N.J.S.A. 40:55D-38), the provisions of this section shall be applied
by stage or section.
J.
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 guaranty, referred to herein as a "temporary certificate of occupancy guaranty" in favor of the Township of Bridgewater 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 guaranty. Upon posting of a temporary certificate of occupancy guaranty, all sums remaining under a performance guaranty, required pursuant to § 126-248 of the Bridgewater Code, which relates 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 guaranty shall be determined by the Construction Code Official, Zoning Officer, Municipal Engineer, or any other municipal official designated by ordinance. The temporary certificate of occupancy guaranty shall be released by the Construction Code Official, Zoning Officer, Municipal Engineer, or other municipal official designated by ordinance 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.
K.
If the property or any part of same is sold or otherwise conveyed
to a successor developer prior to the completion and acceptance of
all improvements, an assignment of developer's agreement, and new
performance, maintenance or other guaranties, shall be required from
the new owner or successor developer. Upon the transfer of ownership
of property that is the subject of a construction permit, and prior
to beginning or continuing work authorized by the construction permit,
the new owner or successor developer shall file with the Building
Department an application for a permit update to notify the Building
Department of the name and address of the new owner or successor developer
and of all other changes to information previously submitted to the
Building Department. The Building Department shall not approve the
application for a permit update until it receives notification from
the governing body or its designee that the new owner or successor
developer has furnished adequate replacement performance, maintenance
or other guaranties and assignment of developer's agreement.
