Improvement guarantees shall be provided to
ensure the municipality of the proper installation and maintenance
of on-site and on-tract improvements.
A.
Prior to the approval of a final site plan requiring
public improvements to be owned by or dedicated to the Township, a
developer shall be required to post a performance guarantee in conformance
with this article.
B.
Before the recording of final subdivision plats 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 board shall require
and the Township shall accept in accordance with the standards set
forth herein, for the purpose of assuring the installation and maintenance
of on-tract improvements, a performance guarantee in favor of the
Township, as follows:
[Amended 8-28-2019 by Ord. No. 10-2019]
(1)
The developer shall furnish a performance guarantee in favor of the
Township that shall be in an amount of 120% of the cost of installation,
which cost shall be determined by the Township Engineer for only those
improvements required by an approval or developer's agreement, ordinance
or regulation to be dedicated to a public entity, including streets,
curbs, grading, pavement, gutters, sidewalks, streetlighting, street
trees, surveyor's monuments, as shown on the final plat and required
by the Map Filing Law (N.J.S.A. 46:23-9.9 et seq.), water mains, sanitary
sewers, community septic system, drainage structures, public improvements
of open space and any grading necessitated by the preceding improvements.
A performance guarantee shall also be furnished for 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.
(2)
The Township Engineer shall prepare an itemized cost
estimate of the improvements covered by the performance guarantee,
in the manner specified in N.J.S.A. 40:55D-53.4, which itemized cost
estimate shall be appended to each performance guarantee posted by
the obligor.
(3)
The performance guarantee shall consist of a developer's
agreement, the terms of which shall concern the general development
of the tract, plus 10% of the performance guarantee amount in cash
and the remaining 90% by any of the following:
(a)
Cash, by means of a bank or treasurer's check.
(b)
A performance bond issued by a bonding or surety
company approved by the Township Attorney as to form and content,
which bond shall contain a provision that it shall not expire until
released by the Township Committee.
(c)
An irrevocable standby letter of credit must be written in accordance
with the standardized form adopted by regulation by the Department
of Community Affairs pursuant to Section 1 of P.L. 1999, c. 68 (N.J.S.A.
40:55D-53a) as complying with the provisions of Section 41 of P.L.
1975, c. 291 (N.J.S.A. 40:55D-53) and approved by the Township Attorney
or other security as may be approved by the Township Committee.
C.
An irrevocable letter of credit shall only be accepted
if it constitutes an unconditional payment obligation of the issuer
running solely to the Township for an express initial period of time
in the amount required; is issued by a banking or savings institution
authorized to do so and doing business in the State of New Jersey;
is for a period of time of at least one year; and permits the Township
to draw upon the letter of credit if the obligor fails to furnish
another letter of credit which complies with the provisions of this
section 30 days or more in advance of the expiration date of the letter
of credit or such longer period in advance thereof as is stated in
the letter of credit. All guarantees posted herein shall be in addition
to and not in substitution for the developer's primary responsibility
to install the improvements and complete the subdivision in accordance
with all rules, regulations, standards, specifications, and ordinances
of the Township.
D.
All performance guarantee amounts shall be computed,
by the Township Engineer based on the documented construction costs
for public improvements prevailing in the general area of the Township.
E.
The developer may appeal the Township Engineer's estimate
to the Township Committee. The Township Committee shall decide the
appeal within 45 days of the appeal in writing by the Township Clerk.
After the developer posts a guarantee with the Township based on the
cost of installation of improvements as determined by the Township
Committee, he may institute legal action within one year of the posting
in order to preserve the right to a judicial determination as to the
fairness and reasonableness of the amount of the guarantee.
F.
All guarantees shall provide for construction of the required bonded
improvements within two years of the date of their posting. This time
period may be extended by the governing body, in the form of a resolution
granting such extension provided the municipal agency has, if necessary,
extended the period of protection pursuant to N.J.S.A. 40:55D-52a.
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 Township Engineer as aforesaid.
[Amended 8-28-2019 by Ord. No. 10-2019]
G.
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 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 imporvements.
[Amended 8-28-2019 by Ord. No. 10-2019]
H.
Request for list of incomplete improvements; filing of monument certification.
[Amended 8-28-2019 by Ord. No. 10-2019]
(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 Township Committee, in writing, by certified mail addressed in
care of the Township Clerk that the Township Engineer prepare, in
accordance with the itemized cost estimate prepared by the Township
Engineer and appended to the performance guarantee pursuant this section,
a list of all uncompleted or unsatisfactorily completed bonded improvements.
If such a request is made, the obligor shall send a copy of the request
to the Township Engineer. The request shall indicate which bonded
improvements have been completed and which bonded improvements remain
uncompleted in the judgment of the obligor.
(2)
At the time of the request, the obligor is to file
with the Township Engineer, the surveyor's monument certification;
signed and sealed as-built construction plans; and, if not previously
provided, deed(s) of dedication for roads, detention basin lots, open
space areas, easements or other land areas to be dedicated to the
Township all of which shall be subject to review and approval by the
Township Engineer and Township Attorney.
I.
The Township Engineer shall inspect all bonded improvements covered
by the obligor's request and shall file a detailed list and report,
in writing, with the Township Committee, and shall simultaneously
send a copy thereof to the obligor not later than 45 days after the
Engineer's receipt of the obligor's request.
[Amended 8-28-2019 by Ord. No. 10-2019]
J.
The list prepared by the Township 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 bonded improvement or the nature and extent of, and
remedy for, the unsatisfactory state of each completed bonded improvement
determined to be unsatisfactory. The report prepared by the Township
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 Township Engineer and appended
to the performance guarantee.
[Amended 8-28-2019 by Ord. No. 10-2019]
K.
The Township Committee, by resolution, shall either approve the bonded
improvements determined to be complete and satisfactory by the Township
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 bonded improvements accepted, in accordance
with the itemized cost estimate prepared by the Township Engineer
and appended to the performance guarantee pursuant to this section.
This resolution shall be adopted not later than 45 days after receipt
of the list and report prepared by the Township Engineer. Upon adoption
of the resolution by the Township Committee, 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 performance guarantee posted shall be retained to ensure completion
and acceptability of all improvements.
[Amended 8-28-2019 by Ord. No. 10-2019]
L.
In the event that the obligor has posted cash with
the Township as part of the performance guarantee, then any partial
reduction granted in the performance guarantee pursuant to this section
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.
M.
If any portion of the required bonded improvements is rejected, the
Township Committee may require the obligor to complete or correct
such bonded improvements and, upon completion or correction, the same
procedure of notification, as set forth above shall be followed.
[Amended 8-28-2019 by Ord. No. 10-2019]
[Amended 8-28-2019 by Ord. No. 10-2019]
A.
Prior to the release of all or any portion of the performance guarantee,
a maintenance guarantee shall be posted with the Township Committee
for a period of two years after final acceptance of the improvement,
in the 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).
B.
In the event that other government 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 for such utilities or improvements.
[Amended 8-28-2019 by Ord. No. 10-2019]
A.
The developer shall reimburse the Township for reasonable inspection
fees paid to the Township Engineer for the foregoing inspection of
improvements which fees shall not exceed the sum of the amounts set
forth herein. The Township shall require the developer to post the
inspection fees in escrow in an amount.
(1)
Not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of bonded improvements that are subject to the performance guarantee under § 140-92B;
(2)
For those developments for which the reasonably anticipated 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 Township Engineer for inspection, 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 Township Engineer
for inspection, the developer shall make additional deposits of 25%
of the inspection fees.
B.
If the Township determines that the amount in escrow for the payment
of inspection fees 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, signed
by the Township 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.
In the event that final approval is by stages
or sections of development, the provisions of this article shall be
applied by stages or section.
All guarantees, sureties, and lending institutions
are subject to the approval of the Township Attorney and the governing
body.
[Added 8-28-2019 by Ord.
No. 10-2019]
A.
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 Township 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.
B.
Upon posting of a temporary certificate of occupancy guarantee, all sums remaining under a performance guarantee, required pursuant to § 140-92, which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. At no time may a Township hold more than one guarantee or bond of any type with respect to the same line item.
C.
The scope and amount of the temporary certificate of occupancy guarantee
shall be determined by the Township Engineer.
D.
The temporary certificate of occupancy guarantee shall be released
by the Township Engineer or Zoning Officer 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.
[Added 8-28-2019 by Ord.
No. 10-2019]
A.
In addition to a performance guarantee required pursuant to § 140-92, a developer shall furnish to the Township a guarantee, referred to herein as a "safety and stabilization guarantee," either as a separate guarantee or a line item of the performance guarantee, in favor of the Township, to be available to the Township 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:
(1)
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
(2)
Work has not recommenced within 30 days following the provision
of written notice by the Township to the developer of the Township's
intent to claim payment under the guarantee.
B.
The amount for the safety and stabilization guarantee shall be calculated
to equal the following:
(1)
For a development with bonded improvements in an amount not
exceeding $100,000, shall be $5,000.
(2)
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:
(a)
$5,000 for the first $100,000 of bonded improvement costs, plus
2.5% 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.
C.
The Township 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 Township shall provide written
notice to a developer by certified mail or other form of delivery
providing evidence of receipt.
D.
The Township 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 section.
E.
The Township shall release a safety and stabilization guarantee upon
the municipal 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.
