Preliminary approval of a site plan shall confer
upon the applicant for a three-year period from the date of the preliminary
approval the rights set forth in N.J.S.A. 40:55D-49, except as otherwise
provided in Subsection d thereof.
[Amended 4-25-2001 by Ord. No. 13-01]
A. As a condition of final site plan approval or as a
condition to the granting of a development approval pursuant to N.J.S.A.
40:55D-1 et seq., the applicant shall have installed all improvements
required by the Planning Board, except that the Borough Council may
require and shall accept in accordance with the standards adopted
herein for the purpose of assuring the installation and maintenance
of on-tract improvements, the following:
(1) The furnishing of a performance guaranty in favor
of the Borough in an amount not to exceed 120% of the cost of installation,
which cost shall be determined by the Borough Engineer 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), for improvements that the Board may deem
necessary or appropriate including: 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, P.L.
1960, c. 141 (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 Borough 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 obligor.
(2) A maximum of 10% of the total guaranty required shall
be in cash. All of the improvements shall be subject to inspection
and approval by the Borough Engineer, who shall be notified by the
developer at least 48 hours prior to the start of the construction.
No underground installations shall be covered until inspected and
approved.
B. The time allowed for installation of the improvements
for which the performance guaranty has been provided may be extended
by the Borough Council 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 installation as determined as of the time of the
passage of the resolution. The cost shall be determined by the Borough
Engineer according to the method of calculations set forth in N.J.S.A.
40:55D-53.4.
C. 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 cost 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.
D. Request for list from Borough Engineer.
(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 Borough Council, in writing, by certified mail, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guaranty pursuant to Subsection
A of this section, a list of all uncompleted or unsatisfactorily completed improvements. A copy of the request shall be sent to the Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon, the Borough Engineer shall inspect all improvements covered by the request and shall file a written list and report with the Borough Council, with a copy to the obligor, not later than 45 days after the receipt of the obligor's request.
(2) The list prepared by the Borough 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, or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report shall also 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 Borough Engineer and appended to the performance guaranty pursuant to Subsection
A of this section.
E. Reduction of performance guaranty.
(1) The Borough Council, by resolution, shall either approve
the improvements determined to be complete and satisfactory by the
Borough Engineer or reject any or all of these improvements 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 Borough Engineer. This
resolution shall be adopted not later than 45 days after receipt of
the list and report prepared by the Borough Engineer. Upon adoption
of the resolution by the Borough Council, the obligor shall be released
from all liability pursuant to its performance guaranty with respect
to those approved improvements, except for that portion adequately
sufficient to secure completion of correction of the improvements
not yet approved, provided that 30% of the amount of the performance
guaranty posted may be retained to ensure completion of all acceptability
of all improvements.
(2) For the purpose of releasing the obligor from liability pursuant to its performance guaranty, the amount of the performance guaranty attributable to each approved improvement shall be reduced by the total amount for each such improvement in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guaranty pursuant to Subsection
A of this section, including any contingency factor applied to the cost of installation. If the sum of the approved improvements would exceed 70% of the total amount of the performance guaranty, then the Borough may retain 30% of the amount of the total performance guaranty to ensure completion and acceptability of all improvements as provided above.
(3) If the obligor has made a cash deposit with the Borough
as part of the performance guaranty, then any partial reduction granted
in the performance guaranty pursuant to this subsection 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.
F. If any portion of the required improvements is rejected,
the Borough may require the obligor to complete or correct such improvements
and, upon completion or correction, the same procedure of notification
as set forth in this section shall be followed.
G. Nothing herein, however, shall be construed to limit
the right of the obligor to contest by legal proceedings any determination
or lack of a determination of the Borough Council or the Borough Engineer.
H. 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 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 Section
15 of P.L. 1991, c. 256 (N.J.S.A. 40:55SD-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. 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 Borough 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.
The Borough Engineer shall not perform any inspection if sufficient
funds to pay for those inspections are not on deposit.
I. If final approval is by stages or sections of a development pursuant to Subsection
A of Section 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.
J. To the extent that any of the improvements have been dedicated to the Borough on a subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guaranty required pursuant to Subsection
A of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Borough Engineer.
[Added 4-25-2001 by Ord. No. 13-01]
Before the acceptance of any on-tract improvements,
the applicant shall post a maintenance guaranty with the Mayor and
Council 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
improvement, which cost shall be determined by the Borough Engineer
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). If other governmental agencies
or public utilities automatically will own the utilities to be installed,
or if 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.
The reviewing board may, as a condition of final
site plan approval:
A. Grant final site plan approval only for designated
geographic sections of the development.
B. Grant final site plan approval for certain work, but
require resubmission for final site plan approval for designated elements,
such as but not limited to landscaping, signs, street furniture, etc.,
and require final approval of these elements as a prerequisite for
a certificate of occupancy or a zoning permit.
C. Condition the granting of a certificate of occupancy
or a zoning permit.
D. Condition the granting of a certificate of occupancy
or a zoning permit subject to the applicant or developer or subsequent
heirs or assignees meeting certain requirements within a designated
period of time, not to exceed one year, from the date of issuance
of the certificate of occupancy or zoning permit. This may include
but is not limited to the installation of landscaping, erection of
signs, installation of improvements, reevaluation of circulation patterns,
etc.