[Amended 12-8-2009 by Ord. No. 15-2009]
Before recording of subdivision plats or deeds, as a condition
of site plan approval, or as a condition to the issuance of a zoning
permit, the Planning Board may require and shall accept performance
guaranties and maintenance guaranties which must be posted with the
Township in accordance with this article for the purpose of assuring
the installation and maintenance of required improvements, as follows:
A.
A performance guaranty posted with the Township in an amount not to exceed 120% of the cost of installation, which cost shall be determined by the Township Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4, for improvements which the Planning Board may deem necessary or appropriate, including but not limited to streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments as shown on the final map and required by the Map Filing Law (N.J.S.A. 46:23-9.9 et seq.), water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping. The Township 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 developer. At least 10% of the performance guaranty amount must be posted in cash (although the developer may elect to post a larger percentage of the performance guaranty in cash), subject to the terms of a written cash bond as provided in Subsection D(3), below. The forms of the performance guaranty and/or cash bond must be reviewed by and meet the approval of the Township Solicitor before they are posted with the Township. The performance guaranty must contain deadlines for completion of improvements that have been established by resolution of the Planning Board.
B.
A maintenance guaranty posted with the Township to guaranty maintenance
over a period not to exceed two years from the Township's approval
or acceptance of the improvements, in an amount not to exceed 15%
of the cost of the improvements, which cost shall be determined by
the Township Engineer according to the method of calculation set forth
in N.J.S.A. 40:55D-53.4. The developer may elect to post all or part
of the maintenance guaranty in cash, subject to the terms of a written
cash bond. The form of the maintenance guaranty and/or cash bond must
be reviewed by and meet the approval of the Township Solicitor before
it is posted with the Township.
C.
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 Township for such utilities or improvements.
D.
The performance and maintenance guaranties must be reviewed by the
Township Solicitor to confirm that they are issued satisfactorily
as to form, sufficiency and execution, and that they meet the following
requirements:
(1)
Performance guaranties must include the deadline for completion of
improvements, which deadline must be established by resolution of
the Planning Board.
(2)
Surety bonds (performance or maintenance) must be issued by surety
companies that are listed as acceptable to provide payment or performance
bonds as required by N.J.S.A. 2A:44-143 and 2A:44-144.
(3)
Letters of credit (performance or maintenance) must meet the requirements
of N.J.S.A. 40:55D-53.5.
(4)
Cash (to guarantee performance or maintenance) may only be posted
subject to the terms of a written cash bond, the form of which must
meet the approval of the Township Solicitor.
E.
After review and approval by the Township Solicitor, the original
approved performance guaranty and the original approved maintenance
guaranty must both be posted with the Township Clerk prior to the
Planning Board Chairperson's and Secretary's signature of any site
plan, subdivision plat or minor subdivision deed, and prior to the
issuance of any zoning, building, or other permit or certificate.
F.
Extensions of time. The time allowed for installation of the improvements
for which the performance guaranty 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 guaranty 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 Township 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.
G.
Default; reductions and release. If the required improvements are
not completed or corrected in accordance with the performance guaranty,
the developer and surety, if any, shall be liable therefor 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. 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.). Otherwise, the guaranties will be subject to reduction and
release as provided in N.J.S.A. 40:55D-53.
A.
The Planning Board must establish a deadline by which the applicant
must complete all guaranteed improvements in connection with a site
plan, subdivision or other approval. The deadline should be a date
certain that is memorialized by Planning Board resolution prior to
the posting of the performance guaranty, but may instead be a period
of time that runs from the adoption date of the Board's resolution
of approval. The completion deadline is an administrative deadline
established for purposes of measuring default under the performance
guaranty, and should be based on the applicant's and Planning Board
Engineer's estimate of when the project will be complete to the extent
that the site improvements are necessary for proper use of the site
and protection of those who are or may be affected by it. The completion
deadline is separate and distinct from the expiration date of final
site plan or subdivision approval as provided in N.J.S.A. 40:55D-52
and this article. The completion deadline may be established and thereafter
extended by majority vote of the Board without public hearing or notice
at any time prior to the expiration of final approval, provided that
such deadline must be established prior to the review and posting
of the performance and maintenance guaranty. After the guaranty have
been posted, the completion deadline may be extended by the Township
pursuant to N.J.S.A. 40:55D-53(b). Extension requests must be considered
in light of the purposes expressed in this section and will require
a showing by the applicant that the site improvements are not or will
not be needed within the originally estimated time.
The developer shall reimburse the Township for all reasonable
inspection fees paid to the Township Engineer for the foregoing inspection
of improvements; provided that the Township may require of the developer
a deposit for the inspection fees in an amount not to exceed, except
for extraordinary circumstances, the greater of $500 or 5% of the
cost of improvements, which cost shall be determined pursuant to N.J.S.A.
40:55D-53.4. For those developments for which the inspection fees
are less than $10,000, fees may, at the option of the developer, be
paid in two installments. The initial amount deposited 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 Township Engineer
for inspection, the developer shall deposit the remaining 50% of the
inspection fees. For those developments for which the inspection fees
are $10,000 or greater, fees may, at the option of the developer,
be paid in four installments. The initial amount deposited 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 Township Engineer
for inspection, the developer shall make additional deposits of 25%
of the inspection fees. The Township Engineer shall not perform any
inspection if sufficient funds to pay for those inspections are not
on deposit.
A.
All easements for roadways, road widening, utilities, sight triangles,
drainage and emergency access, and all declarations of covenant or
restriction pertaining to maintenance of facilities, landscaping or
other improvements or for road access restrictions or any other purpose
required as a condition of any Planning Board approval, must be established
to the Township Solicitor's satisfaction prior to signature of any
site plan or subdivision deed or plat, by approved deed or other document
of record, as well as being indicated on any approved site plan or
subsequently filed plat.
B.
Prior to the Planning Board Chair's or Secretary's signature of any
site plan, subdivision plat or minor subdivision deed, and prior to
the issuance of any zoning permit, building permit, or other permit
or certificate:
(1)
The applicant must prepare and submit all required deeds and other
instruments as set forth above, with all legal descriptions and other
schedules attached or otherwise included, for review and approval
by the Township Solicitor and Engineer or, as the case may be, the
Planning Board Solicitor and Engineer (depending on which of these
officials are assigned responsibility for such review in the conditions
of the Board's approval).
(2)
After the deeds and instruments have been reviewed and approved as
aforesaid, the applicant must have them executed, recorded and returned
to the reviewing solicitor along with such additional proof as may
be necessary, in such solicitor's opinion, to confirm that all such
deeds and instruments have been properly executed and recorded, and
that they are not subject or subordinate to any other interest which
could extinguish them or otherwise render them ineffective.
C.
Until such time as the streets and other improvements are accepted
by the Township, and except as otherwise provided by law, the developer
shall be obligated to perform all maintenance, including but not limited
to all snowplowing of such streets and other municipal functions.
D.
In the event the developer fails to maintain the streets or other improvements and thereby creates a hazard, drainage failure, or other problem that could result in harm to persons or property, the Township may perform such maintenance as is necessary to eliminate the hazard or problem. The costs incurred by the Township in so doing shall be billed to and paid by the developer, and, if not so paid within 30 days after billing, the developer may be prosecuted for a zoning violation in Municipal Court, and as such the developer shall be subject to fines and penalties pursuant to § 60-112 in addition to reimbursement as aforesaid. The Township may also take reimbursement for such costs from the developer's inspection or review escrows. Maintenance work performed by the Township as a result of the developer's failure to properly maintain streets and other improvements shall not constitute an acceptance of the streets, drainage or other improvements.
