Borough of Fort Lee, NJ Article VII Performance and Maintenance Guaranties

§ 345-26 Site plan improvements.

A. Before final approval of a site plan, the municipal agency may require, in accordance with standards adopted by ordinance, the furnishing of a performance guaranty of all or any of the following improvements it may deem to be necessary or appropriate; street grading, pavement, curbs, sidewalks, fire hydrants and boxes, street signs, streetlighting, shade trees, surveyor's monuments, water mains, culverts, bridges, storm sewers, sanitary sewers or other means of sewage disposal, drainage facilities and easements therefor or structures and other improvements as the municipal agency may require or deem necessary in the public interest, even though said improvement may be required to be located outside the property limits of the subdivision or development, so long as the same are necessitated or required by construction or improvement within such subdivision or development, and provided further that the developer shall not be required to pay more than his pro rata share of the cost of such off-tract improvements.

B. The municipal agencies shall establish fair and reasonable standards to determine the proportionate or pro rata amount of the cost of such facilities that shall be borne by each developer or owner within a related or common area, which standards shall not be altered subsequent to preliminary site plan approval.

C. The developer may pay under protest the amount determined to be his pro rata share; however, such developer shall be required to institute legal action within one year of such payment under protest in order to preserve his right to a judicial determination as to the fairness or reasonableness of the amount allocated by the municipal agency as his pro rata share.

§ 345-27 Performance guaranties.

A. All improvements specified by this chapter or required by the municipal agency shall require the posting of a performance guaranty to assure the installation of the required improvements prior to approval of any final plan.

B. Such performance guaranty may be in the form of a performance bond which shall be issued by a bonding or surety company approved by the Borough, a certified check returnable to the landowner after full compliance or other type of surety approved by the Borough Attorney.

C. The performance guaranty shall be approved by the Borough Attorney as to full sufficiency and execution and shall be in an amount not to exceed 120% of the cost of installation for the required improvements as estimated by the Borough Engineer and insuring the installation of such improvements on or before an agreed date. Such performance guaranty shall run for a period to be fixed by the governing body but in no case for a term of more than three years.

D. With the consent of the owner and surety, if there is one, the governing body may by resolution extend the term of such performance guaranty for an additional period not to exceed three years. As a condition or as a 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 the passage of the resolution.

E. If the required improvements are not completed or corrected in accordance with the performance guaranty, the obligor and surety, if any, shall be liable thereon to the Borough for the reasonable costs of the improvements not completed or corrected, and the Borough may either prior to or after the receipt of the proceeds thereof complete such improvements.

F. Upon substantial completion of all the required appurtenant utility improvements and the connection of the same to the public system, the obligor may notify the governing body in writing, by certified mail, addressed in care of the Borough Clerk, of the completion or substantial completion of the improvement or improvements and shall send a copy thereof to the Borough Engineer. Thereupon the Borough Engineer shall inspect all improvements of which such notice has been given and shall file a detailed report, in writing, with the governing body, indicating either approval, partial approval or rejection of such improvements with a statement of reasons for any rejection. The cost of the improvements as approved or rejected shall be set forth.

G. The governing body shall either approve, partially approve or reject the improvements on the basis of the report of the Borough Engineer and shall notify the obligor in writing, by certified mail, of the contents of said report and the action of the governing body 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 his performance guaranty, except for that portion adequately sufficient to secure the provision of the improvements not yet improved, provided that 30% of the amount of the performance guaranty posted may be retained to insure completion of all improvements. Failure of the governing body to send or provide such notification to the obligor within 65 days shall be deemed to constitute an approval of the improvements, and the obligor and surety, if any, shall be released of all liability pursuant to said performance guaranties for such improvements.

H. If any portion of the required improvements is rejected, the governing body may require the obligor to complete such improvements, and, upon completion, the same procedure of notification as set forth herein shall be followed.

I. Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the Municipal Engineer.

J. The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements, provided that the Borough may require of the developer a deposit for all or a portion of the reasonably anticipated fees to be paid to the Borough Engineer for such inspection.

K. In the event that final approval is by stages or sections of development pursuant to N.J.S.A. 40:55D-38(a), the provisions of this section shall be applied by stage or section.

§ 345-28 Maintenance guaranties.

In accordance with N.J.S.A. 40:55D-53(a)(2), as amended, the Borough shall require the posting of a maintenance guaranty for a period not to exceed two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the improvements or of the original installation, as determined by the Borough Engineer. 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 Borough for such utilities or improvements.

§ 345-29 Off-tract improvements.

A. General requirements.

(1) Any site plan requiring off-tract improvements, as defined herein, shall comply with the provisions of this subsection.

(2) An off-tract improvement shall be one or more required improvements which are necessary for the successful completion of a development in the interest of furthering the public health, safety and general welfare and where said improvements are located off tract.

(3) An off-tract improvement shall be required where either the existing facilities serving the area or subarea are already operating at a deficient level of service or the inclusion of a new development will make such present level of service deficient according to engineering standards utilized in determining such levels of service.

(4) The contribution of any such off-tract improvement to the applicant shall be reasonably related to the relative benefit or use of the total area so served.

(5) Under the conditions of this chapter, off-tract improvements shall be limited to new or improved water distribution, sanitary sewage disposal and distribution and stormwater and drainage distribution facilities and all necessary appurtenances thereto and utility easements and to new or improved street and right-of-way widths, traffic regulation and control devices, intersection improvements, utility relocation where not provided elsewhere and other traffic, circulation and safety factors which are directly related to the property or properties in question.

B. Determinations by approving authority. Each site plan requiring authorization by the approving authority shall be subject to a determination and findings as follows:

(1) That certain off-tract improvements are or are not necessary to implement the site plan.

(2) That, in instances where off-tract improvements are required, the terms and conditions which shall be imposed upon the application shall ensure the successful and reasonable implementation of the same.

(3) In the event that the approving authority determines that one or more improvements constitute an off-tract improvement, the approving authority, by resolution, shall notify the governing body of same specifying the authority's recommendation relative to the estimated cost of the same, the owner's or developer's pro rata share of the cost and possible methods or means to implement the same, including but not limited to performance and maintenance guaranties, cash contributions, development agreements and other forms of surety.

(4) Action by an approving authority relating to off-tract improvements shall be conditioned upon the governing body reviewing the recommendations of the approving authority and making a determination as to the responsibility it shall accept. It is clearly understood that the Borough of Fort Lee is under no responsibility to construct, install or provide off-tract improvements to accommodate a subdivision approval.

(5) Where an applicant pays the amount determined as the pro rata share under protest, he shall institute legal action within one year of such payment in order to preserve the right to a judicial determination as to the fairness and reasonableness of such amount. No building permit shall be issued until the expiration of said one-year period or until such time as the applicant shall waive such provisions of this chapter.

C. Methods of implementation.

(1) Performance and maintenance guaranties. Where a performance or maintenance guaranty or other surety is required in connection with an off-tract improvement, the application shall be required to follow the same procedure and requirements as specified in this article.

(2) Development agreement. Where a development agreement is required governing off-tract improvements or other conditions as may be required by this chapter or by the approving authority, said agreement shall be in writing and shall specify the amount of cash contributions, if any, the method of payment of the same, the relative timing of such payment and the obligation or obligations to be undertaken by the Borough.

(3) Conditions not requiring cash contributions. Cash contributions for off-tract improvements shall not be required under the following terms or conditions:

(a) Where other county or state agencies or a utility authority has jurisdiction over the subject improvements and requires a cash contribution, guaranty or other surety by the applicant in lieu of such contributions imposed by the Borough.

(b) Where a benefit assessment or other similar tax levy is imposed upon the applicant and other landowners similarly situated within a designated service area for the off-tract improvements provided.

(c) Where the applicant can undertake the improvements in lieu of the municipality, subject to standards and other conditions as may be imposed by the Borough.

(d) Method of payment of cash contributions. Where a cash contribution is required, said contribution will be deposited with the Tax Collector of the Borough with transmittal letters forwarded to the governing body, the Borough Engineer and the approving authority.

D. Determination of cost to applicant. Where a cash contribution or other financial distribution is determined, the following criteria shall be considered:

(1) Street widening, alignment, corrections, channelization of intersections, construction of barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements not covered elsewhere, the construction of new streets and other similar street or traffic improvements. The applicant's cost shall be in the ratio of the estimated peak hour traffic generated by the proposed property or properties to the sum of the present deficiency in peak-hour traffic capacity of the present facility and the estimated peak-hour traffic generated by the proposed development. The ratio thus calculated shall be increased by 10% for contingencies.

(2) Water distribution facilities, including the installation of new water mains, the extension of existing water mains, the relocation of such facilities and the installation of other appurtenances associated therewith. The applicant's cost shall be in the ratio of the estimated daily use of water from the property or properties, in gallons per day, for the existing system or subsystem and the estimated daily use of water for the proposed development. The ratio thus calculated shall be increased by 10% for contingencies.

(3) Sanitary sewage distribution facilities, including the installation, relocation or replacement of collector and interceptor sewers and the installation, relocation or replacement of other appurtenances associated therewith. The applicant's cost shall be in the ratio of the estimated daily flow, in gallons, to the sum of the present deficient capacity for the existing system or subsystem and the estimated daily flow from the proposed project or development. In the case where the peak flow from the proposed development may occur during the peak flow period for the existing system, the ratio shall be the estimated peak flow rate from the proposed development, in gallons per minute, to the sum of the present peak flow deficiency in the existing system or subsystem and the estimated peak flow rate from the proposed development. The greater of the two ratios thus calculated shall be increased by 10% for contingencies and shall be the ratio used to determine the cost to the applicant.

(4) Stormwater and drainage improvements, including the installation, relocation or replacement of transmission lines, culverts, catch basins and the installation, relocation or replacement of other appurtenances associated therewith. The applicant's cost shall be in the ratio of the estimated peak surface runoff as proposed to be delivered into the existing system, measured in cubic feet per second, to the sum of the existing peak flow, in cubic feet per second, deficient for the existing system and the estimated peak flow as proposed to be delivered. The ratio thus calculated shall be increased by 10% for contingencies.

(5) Such further criteria, including but not limited to the increase in market values of the property affected and any other benefits conferred, 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.