A.
Performance guaranties.
(1)
Prior to the granting of final approval, the subdivider
shall have installed or shall have furnished performance guaranties for the
ultimate installation of the following:
(a)
Streets.
(b)
Street signs.
(c)
Curbs and/or gutters.
(d)
Sidewalks.
(e)
Streetlighting: in conformance with standard specifications
for same of the Borough.
(f)
Shade trees: to be located on the street line so as not
to interfere with utilities or sidewalks and shall be one of the following
types: Norway maple, sugar maple or plane tree. Such tree shall measure at
least three inches in diameter at a point four feet above the butt.
(g)
Topsoil protection: No topsoil shall be removed from
the site or used as spoil. Topsoil moved during the course of construction
shall be redistributed so as to cover all areas of the subdivision and shall
be stabilized by seeding or planting.
(h)
Monuments: to be of the size and shape required by the
Map Filing Law, N.J.S.A. 46:23-9.9 et seq., and shall be placed in accordance
with the statute.
(i)
Water mains, culverts, storm sewers and sanitary sewers.
All such installation shall be properly connected with an approved system
and shall be adequate to handle all present and probable future development.
(j)
Such other improvements as may have been required.
(2)
All of the above-listed improvements shall be subject
to inspection and approval by the Borough Engineer who shall be notified by
the developer at least 24 hours prior to the start of construction. No underground
installation shall be covered until inspected and approved.
B.
No preliminary plat shall be approved by the Planning
Board until the completion of all such required improvements has been certified
to the Planning Board by the Borough Engineer, unless the subdivider shall
have filed with the Borough a performance guaranty in an amount not to exceed
120% of the cost of installation for such improvements or uncompleted portions
thereof as estimated by the Borough Engineer and insuring the installation
of such uncompleted improvements on or before an agreed date. 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 governing body; a certified check,
returnable to the subdivider after full compliance; or any other type of surety
approved by the Borough attorney and Borough Engineer.
C.
The performance guaranty shall be approved by the Borough
Attorney as to form, sufficiency and execution. 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. However, with the consent of the owner and
the 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.
D.
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.
E.
Upon substantial completion of all the required appurtenant
utility improvements and the connection of same to the public system, the
obligor may notify the governing body in writing, by certified mail, addressed
to the Borough Clerk of the completion or substantial completion of 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.
F.
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 alter 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 the provision of the
improvements not yet improved, provided that 30% of the amount of the performance
guaranty posted may be retained to ensure 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 such performance guaranty for such improvements.
(1)
If any portion of the required improvements are 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.
(2)
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.
(3)
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.
(4)
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.
A.
General requirements.
(1)
Any subdivision requiring off-tract improvements, as
defined herein, shall comply with the provisions of this section.
(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 else where and other traffic,
circulation and safety factors which are directly related to the property
or properties in question.
B.
Determination by approving authority. Each subdivision
requiring approving authority approval shall be subject to a determination
and findings as follows:
(1)
That certain off-tract improvements are or are not necessary
to implement such subdivision.
(2)
That, in instances where off-tract improvements are required,
the terms and conditions which shall be imposed upon the applicant shall ensure
the successful and reasonable implementation of 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 same, the
applicant's pro rata share of the cost and possible methods or means to implement
same, including but not limited to performance and maintenance guaranties,
cash contributions, developer agreements and other forms of surety.
(4)
Action by an approving authority relating to off-tract
improvements shall be conditional upon the governing body reviewing the recommendations
of the approving authority and has made 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.
(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 any cash contributions, if any,
the method of payment of 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 any of the following
terms or conditions:
(a)
Where other county or state agencies or utility authority
have jurisdiction over the subject improvement and require a cash contribution,
guaranty or other surety of the application in lieu of such conditions 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, where legally permissive, can undertake
the improvements in lieu of the municipality, subject to standards and other
conditions as may be imposed by the Borough.
(4)
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 subsystems 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 applicant, 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.