Township of Bernards, NJ
Somerset County
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Table of Contents
Table of Contents
[Ord. #585, § 902A; Ord. #760, § 56; Ord. #1103, § 49]
After preliminary subdivision approval has been granted but prior to the recording of a final subdivision plat, the applicant shall have installed under the inspection of the Township Engineer the improvements required under Section 21-60 unless the applicant has furnished to the Township a performance guaranty in an amount and in a form, approved by the Township Engineer, to assure the installation on or before a date approved by the Board of all improvements required for the whole or any section of the tract which have not already been inspected and approved by the Township Engineer.
[Ord. #585, § 902B; Ord. #1103, § 50]
After preliminary site plan approval has been granted, and before any construction permit is issued for any building, the applicant shall install under the inspection of the Township Engineer those on-tract or on-site improvements required under Subsections 21-60.2 and 21-60.3 which are determined by the Board to have an impact on the health, safety and welfare of the Township, such as:
a. 
Detention and retention facilities.
b. 
Drainage structures, including those carrying off-site or off-tract stormwater runoff.
c. 
Erosion and sedimentation control improvements.
d. 
All landscaping in all buffers.
Prior to commencing site work, the applicant will furnish the Township with a bond for the completion of the above items a, b, c and d, including the grading and reseeding of disturbed areas. The bond shall contain a provision waiving objection to any delay in the completion of any item permitted by the Township Engineer or other Township authorities.
If the Township Engineer determines that a particular improvement, including but not limited to items a, b, c and d above, does not have to be actually installed prior to the granting of final site plan approval in order to protect the environment or the public health, safety or welfare, the applicant may furnish the Township with a performance guaranty to insure installation on or before a date approved by the Township Engineer.
[Ord. #585, § 902C; Ord. #1103, § 51]
The performance guaranty shall be in favor of the Township in an amount equal to 120% of the estimated cost of such improvements as determined in Subsection 21-59.4 below. At least 10% of the performance guaranty shall be in the form of cash or a certified check made payable to the Township of Bernards and shall be accompanied by a cash deposit agreement in the form annexed hereto as Appendix A. Any performance bond given as part of this guaranty shall be given in the form annexed hereto as Appendix B. Developers must use the preprinted form which is available from the Township Engineering Department. The Township Engineer may revise the preprinted form from time to time, but such revisions may not alter the substance of such forms unless authorized by an ordinance implementing the revision.
[Ord. #585, § 902D; Ord. #760, § 57]
An estimate of the cost of such improvements shall be prepared and submitted by the applicant's engineer to the Township Engineer for approval.
[Ord. #585, § 902E; Ord. #1229, § 2]
Unless otherwise permitted by the Planning Board in accordance with N.J.S.A. 40:55D-52b of the Municipal Land Use Law, all improvements required by the development plans must be installed no later than two years from the date of final approval. With the consent of the principal and any surety, the time allowed for the completion of improvements may be extended by the governing body by resolution. The Board shall have a thirty-day period in which to comment upon any proposed extension. As a condition or as 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 of the remaining improvements as established at the time of the passage of the resolution of extension.
[Ord. #585, § 902F]
Upon substantial completion of all required appurtenant utility improvements and connection of same to the public system and upon completion of each of the other required improvements, the obligor (or the performance guaranty) shall notify the governing body, in writing, by certified mail addressed in care of the Township Clerk, of the completion or substantial completion of improvements and shall send a copy thereof to the Township Engineer. Thereupon the Township Engineer shall, within 10 days of notification, conduct a full inspection of the specified improvements, file a detailed report in writing with the governing body, indicating either his approval, partial approval or rejection of the inspected improvements and giving the reasons for any rejection. The cost of the improvements as approved or rejected shall be set forth and certified.
[Ord. #585, § 902G]
The governing body, by resolution, shall either approve, partially approve or reject the inspected improvements on the basis of the report of the Township Engineer and shall notify the obligor in writing, by certified mail, of the contents of the report and the action of the approving authority with relation thereto, not later than 65 days after receipt of the notice from the developer of the completion or substantial completion of the improvements. Where partial approval is granted, the developer shall be released from all liability pursuant to the performance guaranty, except for 120% of the cost of the outstanding improvements or 30% of the amount of the original performance guaranty, whichever is greater, to ensure completion of all remaining improvements. Failure of the governing body to send or provide such notification to the developer within 65 days shall be deemed to constitute approval of the improvements, and the developer and surety if any, shall be released from all liability pursuant to the performance guaranty for the inspected improvements.
[Ord. #1103, § 52; Ord. #1429, 5-29-2001, amended]
As a condition of final approval and coincident with the furnishing of the performance guaranty by the developer, there shall be executed an agreement between the developer and the Township incorporating all of the terms and conditions of approval imposed by the Board in the form set forth in Appendix C. Developers must use the preprinted form which is available from the Township Engineering department. The Township Engineer, in consultation with the Township Attorney, may revise the preprinted form from time to time, but such revisions may not alter the substance of such forms unless authorized by an ordinance implementing the revision.
[Ord. #585, § 902I]
Prior to the acceptance by the Township of any improvements installed in or as part of any development, the developer shall furnish to the Township Engineer a set of as-built plans for the following, drawn on Mylar base sheets not larger than 24 inches x 36 inches.
a. 
Roads (plans and profiles).
b. 
Surface and stormwater drainage (plants and profiles) for facilities in roads and easements.
c. 
Sanitary sewers including individual lot connections and cleanouts (plans and profiles) for facilities in roads and easements.
d. 
Water mains, gas mains and underground electric, telephone and community antenna television (CATV) conduits (plans and profiles) for facilities in roads and easements.
All of the foregoing improvements and utilities may be shown on the same location plans with appropriate legends.
[Ord. #585, § 902J; Ord. #985; Ord. #1103, § 53]
a. 
In the case of a subdivision, no certificate of occupancy shall be issued for any building on any lot in a development until installment of the following improvements required for such lot shall have been completed, inspected and approved by the Township Engineer:
1. 
Streets, curbs and sidewalks (except the wearing course of the pavement section).
2. 
Drainage facilities and grading.
3. 
Sanitary facilities.
4. 
All utilities.
5. 
If the development plan requires that shade trees be installed within a right of way that is or is to become public, no certificate of occupancy shall be issued for any lot unless either (a) the Township Engineer has certified that all such required trees, both upon that lot and in the portion of the right of way abutting that lot, if any, have been installed or (b) the Township Engineer has certified that the planting of such trees should await the next planting season. In the case of a certification under Clause (b), the failure of the developer to install such shade trees by April 15 next following the date of the Engineer's certification shall constitute a default of the developer's obligations and shall entitle the Township to draw upon the performance guaranty for the cost of obtaining and installing such shade trees.
b. 
In the case of a site plan, no certificate of occupancy shall be issued for any building unless the Township Engineer has certified that the site improvements necessary for the occupancy of the building have been completed or have been completed to the extent necessary to allow the safe occupancy of the building without inconvenience to the occupants of the building. In these cases, where other site improvements related to the development plan are incomplete, the applicant shall agree in writing to complete said improvements within 180 days and shall post a guaranty to cover completion of the improvements. In no case shall the final 10% of a residential development, including single-family and duplex units, be occupied until all site improvements have been completed. Notwithstanding the other provisions of this paragraph, if the development plan requires that shade trees be installed within a right-of-way that is or is to become public, no certificate of occupancy shall be issued for any lot unless either (a) the Township Engineer has certified that all such required trees, both upon that lot and in the portion of the right-of-way abutting that lot, if any, have been installed or (b) the Township Engineer has certified that the planting of such trees should await the next planting season. In the case of a certification under Clause (b), the failure of the developer to install such shade trees by April 15 next following of the date of the Engineer's certification shall constitute a default of the developer's obligations and shall entitle the Township to draw upon the performance guaranty for the cost of obtaining and installing such shade trees.
[Ord. #585, § 902K]
Whenever final approval is obtained for a section of a development, then all of the improvements for that section shall be completed, inspected and approved by the Township Engineer before any certificate of occupancy shall be issued for any building on a lot in any succeeding section of the development.
[Ord. #585, § 902L; Ord. #1103, § 54]
The developer's agreement shall provide for a maintenance guaranty to be posted, and the developer shall post such guaranty, with the governing body for a period of two years after final acceptance of improvements in an amount not to exceed 15% of the total cost of the improvements. No acceptance of an improvement shall become effective until such guaranty has been posted and has been reviewed and approved by the Township Engineer and Township Attorney as to its form, sufficiency and execution and until the improvement has been accepted by vote of the governing body. If an improvement performance bond is posted by a developer, it shall recite that, upon acceptance of the improvements, the bond shall then serve as a maintenance bond in the amount of 15% of the total cost of the bonded improvements. In the event that other governmental agencies or public utilities automatically will own 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 Township for such utilities or improvements. In connection with the acceptance of an improvement, the developer may submit a separate maintenance bond in the appropriate amount as a proposed substitution for a previously posted improvement performance bond. The maintenance bond shall be expressly conditioned on the repair, correction of defects, replacement or restoration of an improvement or any part thereof whenever defects arise from faulty materials, poor workmanship or from natural causes. Maintenance shall also include the plowing of snow on streets or portions of streets not yet accepted by the Township in order that vehicular access is at all times provided to lots for which certificates of occupancy have been issued.
[Ord. #1103, § 55; Ord. #1429, 5-29-2001, amended]
A developer may furnish a performance guaranty or maintenance guaranty in the form of an irrevocable letter of credit if it:
a. 
Constitutes an unconditional payment obligation of the issuer running solely to the Township of Bernards for an express initial period of time in the amount determined pursuant to this chapter;
b. 
Is issued by a banking or savings institution authorized to do business in the State of New Jersey, actually doing business in the state and having at least one main office or branch office in the state;
c. 
Permits the presentment of drafts at a location within the state within a forty-mile radius of the Township Municipal Building, which location may be an office of the issuer or an office of any other banking or savings institution designated by the issuer;
d. 
Is for a period of time of at least one year;
e. 
Permits the Township to draw upon the letter of credit if the developer fails to complete any required improvements within the time provided by the Land Development Chapter of the Revised General Ordinances of Bernards Township or by the developer's resolution of approval;
f. 
Permits the Township to draw upon the letter of credit if the developer fails to furnish either another letter of credit which complies with the provisions of this section or an amendment extending the existing letter of credit for a time period consistent with Paragraph d. above at least 30 days before the expiration date of the existing letter of credit;
g. 
Permits drafts in the full amount or any partial amount;
h. 
Recites that a draft upon the letter of credit may be signed by any one of the following: the Township Engineer, Acting Township Engineer, Township Administrator, Assistant Administrator or any member of the Township Committee;
i. 
Satisfies the requirement as to form specified in the New Jersey Uniform Commercial Code (N.J.S.A. 12A:5-101 et seq.) and in the Uniform Customs and Practice for Documentary Credits published by the International Chamber of Commerce, both as amended or revised from time to time; and
j. 
Is accompanied by a statement of an officer of the bank certifying that the bank is in compliance with all applicable capital requirements of all governmental and regulatory bodies.
k. 
Is approved as to form by the Township Attorney. Developers must use the preprinted form set forth in Appendix K, which is available from the Township Engineering Department. The Township Engineer, in consultation with the Township Attorney, may revise the preprinted form from time to time, but such revisions may not alter the substance of such forms unless authorized by an ordinance implementing the revision.
[Ord. #1103, § 56]
It shall be a violation of this chapter for a developer to fail to furnish an acceptable replacement performance guaranty or maintenance guaranty either (a) prior to the expiration of a letter of credit or other time-limited guaranty, or (b) within 30 days following the delivery of written notice from the Township that the developer's guaranty has become inadequate or unacceptable, or (c) within 30 days following the developer's otherwise learning that its guaranty has become inadequate or unacceptable. A guaranty becomes inadequate or unacceptable if the surety or other issuer files or is the subject of a petition under the Federal Bankruptcy Act, or otherwise becomes insolvent or becomes the subject of proceedings under any insolvency law, or if other circumstances arise which significantly jeopardize or impair the Township's present or future ability to promptly enforce the guaranty. It shall also be a violation of this chapter for a developer to perform work, or have work performed on its behalf, on any structure or improvement at a time when the developer is in violation of this subsection 21-59.14, and each day that any such work is performed shall be the basis for a separate violation. In addition, no certificate of occupancy or building permit shall be issued for a development at any time when a guaranty required by this chapter has expired or become inadequate or unacceptable and has not been replaced by the developer.
[Ord. #1103, § 57]
Any improvements in public rights-of-way or on public lands shall be subject to the requirements of section 18-3 of the Revised General Ordinances, "Requirements and Specifications for Street Openings." If the developer has posted a performance guaranty pursuant to subsection 21-59.3 above, then the total cost of completely restoring the public right-of-way or public land shall be included as a component of that performance guaranty, and the Township shall accept that performance surety required by subsection 18-3.5b.
[Ord. #1103, § 58]
In the event that an applicant for a major subdivision or site plan which is proposed to be constructed over a period of time in excess of one year decides to proceed with the installation or construction or required on-site, off-site and/or off-tract improvements prior to an application for final approval, the applicant shall be required to post a performance guaranty to restore the site to a safe and sanitary condition in order to protect the interests of the public pursuant to N.J.S.A. 40:55D-39D. The amount of the guaranty shall be 15% of the estimated cost of the improvements. Restoration of the site shall take place if the applicant ceases work on the site for a period of 18 months and has been notified in writing by the Township of the intent to invoke the performance guaranty in order to begin restoration of the site. The notice of intent shall take place after 12 months of no substantial work on the site.