No construction in compliance with the preliminary site plan
and subdivision approval and prior to a final site plan or subdivision
approval shall commence until the applicant shall accomplish both
of the following, where applicable:
A.
Provide a restoration bond, which shall be a component of the performance
guaranty and shall be designed to assure that the property, after
disturbance, is rendered safe, including but not limited to the requirement
of stabilizing slopes in accordance with general engineering standards.
B.
Provide a performance bond for work done in township or county rights-of-way,
for drainage work or such other infrastructural improvements as may
be required by the approval.
[Amended 4-27-1995 by Ord. No. 95-5]
No final major subdivision or site plan map shall be approved
by the Approving Board until one of the following conditions has been
met:
A.
Complete and satisfactory installation of all items on-site and off-site,
required by the Approving Board in the public interest, to have been
installed, inspected, certified and approved by the Township Engineer
and accepted by the Township Committee and a maintenance guaranty
having been filed and accepted by the Township Committee in accordance
with the requirements of this section. These items include but are
not limited to streets, street signs, curbs, gutters, culverts, trees,
surveyors monuments, soil erosion and stormwater control measures,
water mains, storm sewers, sewage treatment plant, sanitary sewers,
dry sanitary sewers, parking lots, landscaping, drainage facilities
and such other improvements.
B.
The Approving Board may condition its approval upon the posting of
a performance guaranty accepted and approved by the Township Committee
in accordance with the requirements listed below. No maps or deeds
shall be signed or filed prior to the posting of said guaranties.
(1)
The cost of the installation of the items referred to in Subsection A above shall be calculated by the Municipal Engineer according to the method of calculations set forth by statute. The Municipal Engineer shall prepare an itemized cost estimate of the improvements covered by the performance bond, which itemized cost estimate shall be appended to each performance guaranty posted by the obligor. The estimate shall be certified to by the applicant's engineer and shall be utilized for purposes of establishing the performance guaranty.
(2)
The performance guaranty shall be sufficient to ensure installment of such improvements or incomplete portions thereof as estimated by the Township Engineer and assuring the installation of such incomplete improvements on or before an agreed date in accordance with the time set forth in § 11-155 below. An additional amount of 20% of the estimate of the Engineer as authorized by N.J.S.A. 40:55D-53 shall be included in the total amount of the performance guaranty. No maintenance bond shall be accepted nor shall any partial facility be accepted by the township for any item which has further stages of work to be completed or which will need to be completed or which will need to be altered or reworked in any manner due to the installation or connection of any other facility. Any improvements installed prior to final plat application that do not meet township standards shall be added to the performance guaranty.
A.
At least 10% of the performance guaranty shall be in cash or equivalent
deposited with the township. Such cash shall be deposited to the credit
of the township and may be usable at any time in the event of nonperformance
by the applicant. The remaining portion of the performance guaranty
shall be issued by a bonding or surety company authorized to do business
in the State of New Jersey or an irrevocable letter of credit issued
by a bank or savings institution authorized to do business in the
State of New Jersey, as approved by the Township Attorney.
B.
The township shall not be required to refund an amount of interest
paid on a deposit which does not exceed $100 for the year. If the
amount of interest exceeds $100, that entire amount shall belong to
the applicant and shall be refunded annually to the applicant or at
the time the deposit is repaid or applied to the purpose for which
it was deposited, as the case may be, except that the township may
retain for administrative expenses a sum equivalent to no more than
33% of that entire amount, which shall be in lieu of other administrative
and custodial expenses.
[Amended 4-23-1998 by Ord. No. 98-3]
Performance guaranties shall remain in force until the work
for which the guaranty has been obtained is completed.
A.
If the required improvements have not been installed in accordance
with the standards and specifications of the township within the time
limit or extension thereof and the requirements of the performance
guaranties, the obligor and surety shall then be liable to the township
for all reasonable costs of the improvements not installed. Upon receipt
of the proceeds, the township shall install such improvements and/or
may use such portions of said performance guaranties as have been
deposited in cash with the Township Clerk to assure the completion
of said improvements in accordance with the terms of this Article
and any applicable agreement.
B.
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.).
A.
Before accepting a performance guaranty, the governing body shall
have the following:
(1)
A letter from the Township Engineer stating that the proposed guaranty
covers all the items required by the Board, with a list of the items
and costs. The letter shall also state that the plans and specifications
meet all applicable township ordinances.
(2)
A letter from the Township Attorney approving the performance guaranty
as to form and amount.
B.
After approval and acceptance of the performance guaranty by the
governing body, a letter stating that fact shall be sent by the governing
body to the applicable Board before the Board shall sign the final
plats for filing with the county.
A.
The procedures established in N.J.S.A. 40:55D-1 et seq. shall govern
the release of performance guaranties.
B.
Before the governing body releases any guaranties or portions thereof,
the following items shall be required:
(1)
As-built plans and profiles of all utilities and roads with a certification
by the applicant's engineer as to the actual location and construction.
(2)
A statement or affidavit from the developer that there are no liens
or other legal encumbrances on any of the improvements or utilities
proposed to be deeded to the township.
(3)
A maintenance guaranty as provided below in this Article.
(4)
Deeds, free and clear of any encumbrances, for all streets, public
easements, drainage and conservation easements, other lands dedicated
to public use and any improvements to be dedicated or deeded to the
township or other public agency.
C.
All improvements and utility installations shall be inspected during the time of their installation under the supervision of the Township Engineer to ensure satisfactory completion. The Township Engineer shall be notified by the developer five days in advance of the start of construction. The cost of the inspection shall be the responsibility of the developer. Costs are shown in the fee table in § 11-144. This refundable fee shall be in addition to the amount for the performance guaranty. If the inspection costs exceed such funds, the developer shall deposit with the township chief financial officer additional sums upon notice from the Township Engineer and approval of the Township Committee.
D.
In no case shall any paving work (including prime and seal coats)
be done without permission from the Township Engineer prior to any
such construction so that a representative of the Township Engineer's
office may be present at the time the work is to be done. No underground
installation shall be covered until inspected and approved. The Township
Engineer's office shall be notified after each of the following phases
of the work has been completed so that the Township Engineer or a
qualified representative may inspect the work; road subgrade, curb
and gutter forms; curbs and gutters; road paving after each coat,
in the case of priming and sealing; drainage pipes and other drainage
structures before backfilling; shade trees and planting strips; street
name signs; and monuments. Electrical, gas and telephone utility distribution
supply lines installed by the utility companies are exempt from the
above requirements. Shade trees shall not be planted until all grading
and earthmoving are completed.
E.
Inspection by the township of the installation of improvements and
utilities by the developer shall not subject the township to liability
for claims, suits or liability of any kind that may at the time arise
because of defects or negligence during construction or at any time
thereafter. It is recognized that the responsibility to maintain safe
conditions at all times during construction and to provide proper
utilities and improvements is upon the developer and his or her contractors
or subcontractors, if any.
F.
The time allowed for installation of the improvements for which the
performance guaranty has been provided may be extended by the Township
Committee 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 as determined as of the time of passage of the resolution.
G.
Partial approval; report of incomplete improvements.
(1)
The Township Committee shall either approve, partially approve or
reject the 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 said report and the action of the Committee with
relation thereto not later than 65 days after receipt of the notice
from the obligor of the completion of the improvements. Where partial
approval is granted, the obligor shall be released from all liability
pursuant to its performance guaranty, except for that portion adequately
sufficient to secure provision for the improvements not yet approved,
provided that 30% of the amount of the performance guaranty posted
may be retained to ensure completion of all improvements. Failure
of the Township Committee to send or provide such notification to
the obligor within 65 days shall be deemed to constitute approval
of the improvements, and the obligor and surety, if any, shall be
released from all liability pursuant to such performance guaranty
for such improvements.
(2)
Upon substantial completion of all required street improvements (except
for the top course) and pertinent utility improvements and the connection
of the same to the public system, the obligor may request of the governing
body, in writing, by certified mail addressed in care of the Municipal
Clerk, that the Municipal Engineer prepare, in accordance with the
itemized cost estimate prepared by the Municipal Engineer and appended
to the performance guaranty, a list of all incomplete or unsatisfactory
completed improvements. If such a request is made, the obligor shall
send a copy of the request to the Municipal Engineer. The request
shall indicate which improvements have been completed and which improvements
remain incomplete in the judgment of the obligor. Thereupon, the Municipal
Engineer shall inspect all improvements covered by the obligor's request
and shall file a detailed list and report, in writing, with the governing
body and shall simultaneously send a copy thereof to the obligor not
later than 45 days after receipt of the obligor's request.
(3)
The list prepared by the Municipal Engineer shall state, in detail,
with respect to each improvement determined to be incomplete or unsatisfactory,
the nature and extent of the incompleteness of each incomplete improvement
or the nature and extent of and remedy for the unsatisfactory state
of each completed improvement determined to be unsatisfactory. The
report prepared by the Municipal Engineer shall identify each improvement
determined to be complete and satisfactory, together with a recommendation
as to the amount of reduction to be made in the performance guaranty
relating to the completed and satisfactory improvement in accordance
with the itemized cost estimate prepared by the Municipal Engineer
and appended to the performance guaranty.
H.
In the event that final approval is by stages or sections of developments
pursuant to N.J.S.A. 40:55D-1 et seq., the provisions of this section
shall be applied by stage or section.
I.
Reduction of guaranty; legal rights of obligor to compel action.
(1)
The governing body, by resolution, shall either accept the improvements
determined to be complete and satisfactory by the Municipal Engineer
or reject any or all of these 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 the 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 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
bond posted may be retained to ensure completion and acceptability
of all improvements.
(2)
If the Municipal Engineer fails to send or provide the list or report as requested by the obligor pursuant to Subsection G of this section within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Municipal Engineer to provide the list and report within a stated time, and the cost of applying to the court, including reasonable attorneys fees, may be awarded to the prevailing party.
(3)
If the governing body fails to approve or reject the improvements
determined by the Municipal Engineer to be complete and satisfactory
or to reduce the performance guaranty for the complete and satisfactory
improvements within 45 days from the receipt of the Municipal Engineer's
list and report, the obligor may apply to the court in a summary manner
for an order compelling, within a stated time, approval of the complete
and satisfactory improvements and approval of a reduction in the performance
guaranty for the approvable complete and satisfactory improvements
in accordance with the itemized cost estimate prepared by the Municipal
Engineer and appended to the performance guaranty. The cost of applying
to the court, including reasonable attorneys fees, may be awarded
to the prevailing party.
(4)
In the event that the obligor has made a cash deposit with the municipality
or approving authority as part of the performance guaranty, then any
partial reduction granted to the performance guaranty 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
guaranty.
The approval of any plat under this chapter by the Approving
Board shall in no way be construed as acceptance of any street, drainage
system(s) or other improvements required by this chapter, nor shall
such plat approval obligate the township in any way to maintain or
exercise jurisdiction over such street, drainage system(s) or other
improvement. Acceptance of any street, drainage system(s) or other
improvement by the township shall be implemented only by favorable
action by the Township Committee. No improvement shall be accepted
by the Township Committee unless and until all of the following conditions
have been met:
A.
Engineer's certification. The Township Engineer shall have certified,
in writing, that all the improvements are complete and that they comply
fully with the requirements of this chapter and of other applicable
local ordinances.
B.
Final plat approval. The final plat shall have been approved by the
Approving Board.
C.
Maintenance guaranties for improvements. All improvements required
by the Approving Board shall, before being accepted by the township,
be covered by a maintenance guaranty running in favor of the Township
of Knowlton in the amount not to exceed 15% of the cost of the improvement,
which costs shall be determined by the Municipal Engineer according
to a method of calculations set forth by statute. Said maintenance
guaranty shall run for a period of two years and provide for the proper
repair and/or replacement of any such improvements during said period.
The two-year period shall be from the date of the acceptance of the
improvements by the township, and no performance guaranty shall be
released by the township until such time as the maintenance guaranty
herein required has been posted with the township.
