[Amended 3-21-1978 by Ord. No. 2-78; 2-26-2008 by Ord. No.
08-1; 4-18-2019 by Ord. No. 19-7]
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 pursuant to Subsection d of Section 52 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-65), the Borough requires and shall accept in accordance with the standards adopted by ordinance and regulations adopted pursuant to Section 1 of P.L. 1999, c. 68 (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) as follows:
(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 Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4), for
the following 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 or N.J.S.A. 46:26B-1 through 46:26B-8, water
mains, sanitary sewers, community septic systems, drainage structures,
public improvements of open space, and any grading necessitated by
the preceding improvements.
(b)
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.
(c)
The developer shall be required to furnish a performance guarantee
to include, within an approved phase or section of a development,
privately owned perimeter buffer landscaping, as required by Borough
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.
(d)
In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, 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 bond," 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, building or phase of development. Upon posting of a temporary certificate of occupancy bond, all sums remaining under a performance guarantee, required pursuant to Subsection A(1) of this section, which relate to the development, unit, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. At no time may a borough hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy bond shall be released upon the issuance of a permanent certificate of occupancy with regard to the development, unit, building, or phase as to which the temporary certificate of occupancy relates.
(e)
In addition to a performance guarantee required pursuant to Subsection A(1) of this section, a developer shall furnish to the Borough a separate guarantee, referred to herein as a "safety and stabilization bond," in favor of the Borough, to 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: (i) 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 (ii) 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 bond. The Borough shall not provide notice of its intent to claim payment under a safety and stabilization bond 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.
(f)
The amount of a safety and stabilization bond for a development
with bonded improvements in an amount not exceeding $100,000 shall
be $5,000. The amount of a safety and stabilization bond 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.
(g)
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, which cost shall be determined by the
Borough Engineer according to the method of calculation set forth
in Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4) as of the
time of the passage of the resolution.
(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) above, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.
(b)
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
according to the method of calculation set forth in Section 15 of
P.L. 1991, c. 256 (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.
(d)
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, then the Borough shall not require any performance or maintenance
guarantee, as the case may be, for such utilities or improvements.
B.
Successor developer. Any party who succeeds to the interest of an
original developer shall be obligated to the same degree as the original
developer. If any such successor developer has furnished a replacement
performance guarantee, 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 requires and shall accept the furnishing of a
performance guarantee and provision for a maintenance guarantee which
satisfies the requirements of this section with respect to original
developer guarantees.
C.
Guarantee liability and guarantee closeout procedures. The liability
of the obligor on the performance guarantee, and the procedure to
seek a reduction or closing out of the performance guarantee, shall
be as set forth in N.J.S.A. 40:55D-53 et seq.
D.
Dedication of Improvements to the Borough. To the extent that any
of the improvements have been dedicated to the Borough on the subdivision
plat or site plan, the Borough governing body shall be deemed, upon
the release of any performance guarantee required pursuant to 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 Planning Board or Board of Adjustment, as the
case may be, provided that such improvements have been inspected and
have received final approval by the Borough Engineer.
E.
Developer's agreement. Prior to the issuance of building permits
for any buildings in a subdivision or site plan approved under this
chapter, a fully executed developer's agreement approved by the Borough
and an appropriate performance bond in accordance with the terms of
the developer's agreement must be submitted to the Borough.
A.
Completion of improvements. Prior to the issuance
of building permits for any buildings in a subdivision approved under
this chapter, all improvements shall have been installed, except monuments,
sidewalks and the top course of paving on the street, except that
this requirement may be varied by the Planning Board in the case of
a model or display house.
B.
Submission of grading plans. Before the issuance of
a building permit, a grading plan shall be submitted and shall be
approved by the Borough Engineer. This plan shall include the designations
of trees which are to remain and special measures for the protection
of those which may be affected by grading operations.
A.
The following improvements shall be required in addition
to such other items as the Planning Board may require in the public
interest:
(1)
Streets. Streets shall be graded and constructed in
accordance with the construction standards and specifications of the
Borough.
(2)
Street signs. Street signs shall be of the same type
and design as the street signs then currently in use and shall be
installed in accordance with this Code or other applicable ordinances
and statutes in such a manner that the name of each intersecting street
is clearly visible to approaching traffic.
(3)
Curbs and gutters. Belgian block curbs and gutters
shall be constructed in accordance with the construction standards
and specifications of the Borough.
(4)
Catch basins. Catch basins shall be constructed in
accordance with the construction standards and specifications of the
Borough.
(5)
Sidewalks. Concrete sidewalks shall be on both sides
of each street, unless a variation for cause is allowed by the Planning
Board and shall be of sufficient width to accommodate the maximum
pedestrian traffic, but in no case less than four feet in width and
constructed in accordance with the construction standards and specifications
of the Borough.
(6)
Shade trees. Where required by the Shade Tree Committee,
not fewer than two new shade trees shall be installed on each lot,
a minimum distance of 15 feet inside the curbline, not closer than
40 feet to the street intersection, not closer than 25 feet to any
existing or proposed streetlight and installed so as to not interfere
with utilities, roadways, school ways or sidewalks.
(7)
Topsoil protection. No topsoil shall be removed from
the subdivision or site or used as spoil or fill. Topsoil removed
during the course of construction shall be redistributed in the subdivision
so as to provide equal distribution of cover to all areas of the subdivision
and shall be stabilized by seeding and planting. At least six inches
of topsoil shall be provided on all portions of lots not occupied
by buildings or walks.
(8)
Earth removal. No permanent change shall be made in
the elevation or contour of any lot or site by the removal of earth
either to another lot or site or to another part of the same site,
other than that resulting from changes in elevation and contours approved
by the Board, as shown on the preliminary and final plat and profiles
and grading plans.
(9)
Monuments. Monuments are to be of the size and shape
required by N.J.S.A. 46:23-9.11 and shall be placed in accordance
with the requirements of such statute and specifications of the Borough.
(10)
Culverts, storm drains and sewers and utilities.
Provision shall be made for culverts, stormwater drains, sanitary
waste disposal and utilities. All such installations shall be connected
with an approved system which shall be adequate for all present and
future development of the subdivision and surrounding areas and shall
be made in accordance with the construction standards and specifications
of the Borough, county and Sewerage Authority,[1] where applicable.
(11)
Fire hydrants. Fire hydrants shall be installed
in accordance with the standards and specifications of the Water Department
and Fire Department. All hydrants shall be placed at or near street
intersections or at property lines in such a manner as to least interfere
with the use of road and property.
(12)
Water mains. Water mains shall be installed
in accordance with the standards and specifications of the Borough.
(13)
Disposal of dead trees, etc. All stumps, litter,
rubbish, brush, weeds, dead and dying trees, roots and debris shall
be removed from the site. Burying is prohibited.
(14)
Grades. All construction stakes and grades shall
be set by a licensed surveyor employed by the subdivider.
(15)
Construction standards. All standards and specifications
of the Borough shall govern the construction and installation of all
improvements.
(16)
Common areas. For areas not proposed for Borough
ownership, provisions shall be made for grading and topsoil, and seeding
or planting shall be provided, as appropriate, to put the areas in
a condition, excluding structures and other such improvements, for
the intended use; or for areas to be kept in their natural state,
any necessary conservation measures shall be taken. Plans for such
improvements or conservation measures shall be submitted with the
final plat. Sidewalks or walkways, as necessary to provide pedestrian
connections between different sections of the subdivision, shall also
be included.[2]
[Amended 3-20-2001 by Ord. No. 3-01]
Where the need for off-tract improvements for
water, sewer, drainage and street improvements and for other improvements
as provided by law are, in whole or in part, made necessary by the
application, a determination of the contribution of the applicant
for said off-tract improvements shall be made.
A.
Allocation of costs; criteria in determining allocation.
The allocation of costs for off-tract improvements as between the
applicant, other property owners and the Borough or any one or more
of the foregoing shall be determined by the Planning Board, with the
assistance of the appropriate Borough agencies, on the basis of the
total costs of the off-tract improvements, the needs created by the
application, population and land use projections for the general area
of the applicant's property and other areas to be served by the off-site
improvements, the estimated time of construction of the off-site improvements
and the condition and periods of usefulness, which periods may be
based upon the criteria of N.J.S.A. 40A:2-22. Requirements for off-tract
improvements shall be consistent with N.J.S.A. 40:55D-42. In addition,
the following criteria may also be considered, as well as any other
reasonable criteria the Board feels is necessary to protect the health,
safety and general welfare of the Borough:
(1)
Streets, curbs, sidewalks, shade trees, streetlights,
street signs and traffic light improvements may also be based upon
the anticipated increase of traffic generated by the application.
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 application and the anticipated benefit thereto.
(3)
Water supply and distribution facilities may also
be based upon the added facilities required by the total anticipated
water use requirements of the applicant and other properties in the
general area benefiting therefrom.
(4)
Sewerage facilities may be based upon the proportion
that the total anticipated volume of sewage effluent of the applicant's
property and other properties connected to the new facility bears
to the existing capacity of existing sewerage facilities, including
but not limited to lines and other appurtenances leading to and servicing
the applicant's property. Consideration may also be given to the types
of effluent and particular problems requiring special equipment or
added costs for treatment. The Florham Park Sewerage Authority[1] will make this assessment as a condition of any approval.
B.
Determination of cost of improvements. The cost of
installation of the required off-tract improvements shall be determined
by the Planning Board with the advice of the Borough Engineer and
appropriate Borough agencies.
C.
Manner of construction. When those estimates are received,
the Mayor and Borough Council shall then decide whether the off-tract
improvement is to be constructed:
D.
Amount of contribution.
(1)
If the improvement is to be constructed by the Borough
as a general improvement, the applicant shall be required to provide
a cash deposit to the Borough equal to the applicant's pro-rata fair
share of the improvement.
(2)
If the improvement is to be constructed by the applicant,
then it shall be consistent with the developer's agreement.
E.
Payment of allocated cost.
(1)
The estimated costs of the off-tract improvement allocated
to the applicant if deposited in cash shall be paid by the applicant
to the Borough Treasurer, who shall provide a suitable depository
therefor, and such funds shall be used only for the off-tract 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 applicant to
the Borough Treasurer provided for herein is less than its share of
the actual cost of the off-tract improvements, and the developer has
not completed its development, then it shall be required to pay its
appropriate share of the cost thereof.
(3)
In the event that the payment by the applicant to
the Borough Treasurer provided for above is more than its appropriate
share of the actual cost of installation of the off-tract 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 applicant 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 or site plan approval.
(5)
If the applicant and the Planning Board cannot agree
with respect to the applicant's fair share of the actual cost of the
off-tract improvement or the determination made by the officer or
Board charged with the duty of making assessments as to special benefits,
if the off-tract improvement is to be constructed as a local improvement,
no approval shall be granted; provided, however, that the applicant
may challenge such determination and seek to have it revised in appropriate
judicial proceedings in order to compel subdivision or site plan approval.
F.
Installation of improvements by applicant. At the
discretion and option of the Borough and with the consent of the applicant,
the Borough may enter into a contract with the applicant providing
for the installation and construction of the off-tract improvements
by the applicant upon contribution by the Borough of the remaining
unallocated portion of the cost of the off-tract improvement.
G.
Compliance with design criteria. Should the applicant
and the Borough enter into a contract for the construction and erection
of the off-tract improvements to be done by the applicant, it shall
observe all requirements and principles of this chapter in the design
of such improvements.
A.
Where the applicant is to install, the estimated proportionate
costs of the off-tract improvements, as allocated to the applicant,
shall be paid to the Borough. The funds will be deposited in an interest-bearing
account created solely for off-tract improvement moneys. The Borough
shall, from time to time, review such account and, where sufficient
time has passed to warrant the return of these moneys, it shall rescind
all prior approvals and return, with interest, those prior-deposited
moneys which have not in whole or part been used because of the failure
to proceed with the improvement.
B.
If it becomes apparent that the applicant has paid
either more or less than the actual allocable cost of the improvement,
the Borough shall repay or seek payment of the actual difference between
the cost and the moneys already paid.
C.
Where it has been determined that the improvements
will be installed as a general or local Borough improvement by the
Borough, the financing and payment thereof shall be in accordance
with state statutes.
D.
In all other instances, the Borough may contract with
the applicant for both installation and payment to the applicant.The
Borough's contribution shall be in an amount and shall be paid pursuant
to the terms of the contract. This contract, however, shall in no
way relieve the applicant or the Borough from compliance with Planning
Board approvals not otherwise legally overruled by the Borough or
local, county or state laws.
Where the applicant or any property owner cannot
agree with the Planning Board and the governing body as to the appropriate
share of the cost of any off-tract improvement or the manner in which
it was assessed as a local or general Borough improvement, that dispute
shall be resolved in a court of appropriate jurisdiction.
A.
Before any improvements are accepted by the Borough,
the applicant shall deposit with the Borough Clerk a maintenance guaranty
in the amount of 10% of the estimated cost of the improvements, as
estimated by the Borough Engineer, but in no event in an amount less
than $1,000. The maintenance guaranty shall be for a period of two
years and shall provide for the proper repair or replacement, if necessary,
of any such improvements during a two-year period. The two-year period
shall be from the date of the acceptance of the guaranty by the Borough.
Every maintenance guaranty shall contain the following clause: "It
is hereby understood and agreed that in the event the principal shall
default in the performance of this obligation under this obligation,
then surety shall perform the principal's obligation at the option
of the obligee."
B.
The maintenance guaranty shall also guarantee the
replacement of any shade trees found to be unhealthy within two years
after acceptance. In the event that the applicant has completed all
of the improvements prior to the granting of final approval by the
Planning Board of the final plat of any such subdivision or site plan,
the maintenance guaranty shall be posted before the final approval
of the final plat by the Planning Board. This requirement may be waived
by the governing body, at its discretion, when the improvements have
been installed for at least two years prior to acceptance.
