[HISTORY: Adopted by the City Council of the City of Hackensack 6-26-2018 by Ord. No. 27-2018. Amendments noted where applicable.]
Improvement guarantees shall be provided prior to the filing
of final subdivision plats or as a condition of final site plan approval
to ensure the City of the proper installation and maintenance of on-site
and on-tract improvements.
A.
Before filing of final subdivision plats or recording of minor subdivision
deeds or as a condition of final site plan approval or as a condition
to the issuance of a zoning permit, the applicant shall furnish to
the City a performance guarantee and maintenance guarantee to assure
the installation and maintenance of certain on-tract improvements.
The amount of the guarantee shall be determined by the City Engineer,
not to exceed 120% of the estimated cost of installation of only those
improvements required by an approval or developers agreement, ordinance
or regulation to be dedicated to a public entity, including streets,
curbs, grading, pavement, gutters, sidewalks, street lighting, street
trees, surveyors monuments, water mains, sanitary sewers, community
septic system, drainage structures, public improvements of open space
and any grading necessitated by the preceding improvements and privately
owned perimeter buffer landscaping. At the developer's option,
a separate performance guarantee may be posted for the privately owned
perimeter buffer landscaping.
B.
Performance guarantees shall be submitted in the following form:
(1)
A minimum of 10% of the performance guarantee must be posted in cash.
(2)
The remaining 90% of the performance guarantee amount may be posted
in cash, certified check, irrevocable standby letter of credit or
surety bond issued by an insurance company licensed to do business
in the State of New Jersey and acceptable to the City Attorney in
the favor of the City.
(3)
If the applicant elects to post an irrevocable standby letter of
credit, it must be written in accordance with the standardized form
adopted by regulation by the New Jersey 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).
(4)
All guarantees shall provide for construction of the required improvements
within two years of the date of their posting or such other time as
determined by the City Agency. This time period may be extended by
the governing body, in the form of a resolution granting such extension
provided the City Agency has, if necessary, extended the period of
protection pursuant to N.J.S.A. 40:55D-52a. As a condition of this
extension the guarantee amount may be adjusted to 120% of the estimated
cost to construct the improvements at that time and additional inspection
fees deemed necessary by the City Agency shall be paid.
(5)
All performance guarantees shall remain in effect until formally
released by the governing body by a resolution and receipt of an approved
maintenance guarantee as required.
(6)
All guarantees, sureties, and landing institutions are subject to
the approval of the City Attorney and the governing body.
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 City 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 land 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 § 96-2, 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 City 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 City Engineer.
D.
The temporary certificate of occupancy guarantee shall be released
by the governing body 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.
A.
In addition to a performance guarantee required pursuant to § 96-2, a developer shall furnish to the City a separate guarantee, referred to herein as a "safety and stabilization guarantee," in favor of the City, to be available to the City 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 City to the developer of the City'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.
Notice.
(1)
The City 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 City shall provide written
notice to a developer by certified mail or other form of delivery
providing evidence of receipt.
A.
The developer shall post with the City, prior to the release of a performance guarantee required pursuant to § 96-2, a maintenance guarantee, in an amount not to exceed 15% of the cost of the improvements which are being released.
B.
The developer shall post with the City, upon the inspection and issuance
of final approval of the following private site improvements by the
City Engineer, a maintenance guarantee in an amount not to exceed
15% of the cost of the installation, which cost shall be determined
by the City Engineer according to the method of calculation set forth
in Section 15 of N.J.S.A. 40:55D-53.4, of the following private site
improvements:
C.
The term of the maintenance guarantee shall be for a period not to
exceed two years and shall automatically expire at the end of the
established term.
A.
Prior to the signing and recording of final major subdivision plats
and as a condition of final site plan approval in the case of a site
plan, the developer shall enter into the agreement with the governing
body if so required by the City Agency. This agreement shall be of
a form that is acceptable to the City Attorney and one in which the
developer agrees to abide by the terms and condition of approval,
construct the required improvements in accordance with the approved
plans, agree to maintain the constructed improvements including but
not limited to, payment of street lighting charges, snow removal,
maintenance of storm drainage, sewer and water facilities. The developer
also shall agree that in the event the improvements are not maintained,
the City can utilize the cash portions of the performance guarantees
to immediately attend to items presenting a safety hazard.
B.
The developer shall reimburse the City for the cost and expense of
the developer's agreement and filing of the developer's
agreement with the Bergen County Clerk in accordance with the applicable
professional contract, prior to execution of same.
A.
Upon substantial completion of all required street improvements (except for top course), and appurtenant utility improvements, and the connection of same to the public system, the obligator may request of the governing body in writing, by certified mail addressed in care of the City Clerk, that the City Engineer prepare, in accordance with the itemized cost estimate prepared by the City Engineer and appended to the performance guarantee pursuant to § 96-2A of this chapter, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the obligor shall send a copy of the request to the City Engineer. The request shall indicate which City improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Concurrent with this notice the obligor shall forward a set of as-built plans for the following:
(1)
Roads (plan and profiles);
(2)
Surface and stormwater drainage (plans and profiles) for facilities
in roads and easements;
(3)
Sanitary sewers including individual lot connections and cleanouts
(plans and profiles) for facilities in roads and easements;
(4)
Water mains, gas mains and underground electric, telephone and community
antenna television (CATV) conduits (plans and profiles) for facilities
in roads and easements.
B.
Upon acceptance of the as-built plan information by the City Engineer,
two Mylar and four paper copies of the as-built plan shall be submitted
to the City.
(1)
Thereupon the City Engineer shall inspect all bonded improvements
of which such notice has been given and shall file a detailed list
and report, in writing, with the governing body and shall simultaneously
send a copy to the obligor not later than 45 days after receipt of
the obligor's request.
(2)
The list prepared by the City 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 City 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 guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the City Engineer and appended to the performance guarantee pursuant to § 96-2A of this chapter.
C.
The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the City Engineer, or reject any or all of these bonded improvements upon the establishment in the resolution of the cause for rejection, and shall approve and authorize the amount of reduction to be made in the performance guarantee and the safety and stabilization bond relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the City Engineer and appended to the performance guarantee pursuant to § 96-2A of this chapter. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the City Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee and the safety and stabilization bond with respect to those approved bonded improvements except for the portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the performance guarantee and the safety and stabilization bond posted may be retained to ensure completion and acceptability of all improvements.
D.
If the City Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection A 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 City Engineer to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
(1)
If the governing body fails to approve or reject the bonded improvements determined by the City Engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within 45 days from the receipt of the City 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 guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the City Engineer and appended to the performance guarantee pursuant to § 96-2A of this chapter; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
E.
In the event that the obligor has made a cash deposit with the City
or approving authority as part of the performance guarantee, then
any partial reduction granted in the performance guarantee 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 guarantee, provided that if the safety and stabilization
guarantee is included as a line item of the performance guarantee
the City may retain cash equal to the amount of the remaining safety
and stabilization guarantee.
F.
If any portion of the required bonded improvements is rejected, the
approving authority 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 of the
governing body or the City Engineer.
H.
The obligor shall reimburse the City for all reasonable inspection fees paid to the City Engineer for the foregoing inspection of improvements; which fees shall not exceed the sum of the amounts set forth in the following subsections: § 96-7H(1) through (4). The City may require the developer to post the inspection fees in escrow in an amount:
(2)
Not to exceed 5% of the cost of private site improvements that are
not subject to a performance guarantee, which cost shall be determined
pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).
(3)
For those developments for which the reasonably anticipated 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 reasonably anticipated fees. When the balance
on deposit drops to 10% of the reasonably anticipated fees because
the amount deposited by the developer has been reduced by the amount
paid to the City Engineer for inspection, the developer shall deposit
the remaining 50% of the anticipated inspection fees.
(4)
For those developments for which the reasonably anticipated 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 reasonably anticipated fees. When the balance
on deposit drops to 10% of the reasonably anticipated fees because
the amount deposited by the developer has been reduced by the amount
paid to the City Engineer for inspection, the developer shall file
additional deposits of 25% of the reasonably anticipated fees.
(5)
The City Engineer shall not perform any inspection if sufficient
funds to pay for those inspections are not on deposit nor shall the
developer proceed with any work for which an inspection is required
until sufficient funds are on deposit provided that the City delivers
to the developer a written inspection escrow deposit request, signed
by the City 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.
I.
In the event that final approval is by stages or sections of development
pursuant to N.J.S.A. 40:55D-38, the provisions of this subsection
shall be applied by stage or section.
J.
No performance guarantees shall be released if the developer shall
be in default of its developer's agreement in the payment of
escrow fees or payment of taxes.
The installation of any subdivision improvements or the commencement
of any clearing and grading subsequent to preliminary approval shall
not be undertaken unless the following has been done:
A.
If at any time of preliminary approval but prior to the commencement
of final approval, the developer elects to proceed with the installation
of improvements required under this chapter the developer shall furnish
the Borough with the final construction drawings and details.
B.
The Municipal Agency having jurisdiction over the subdivision (Planning
Board or Board of Adjustment) in consultation with the City Engineer
shall review the final construction plans to determine that the clearing,
grading and/or installation of improvements will not hinder future
developments or create physical or aesthetic problems in the event
that further development of the site is not undertaken.
C.
The required construction, inspection, engineering, and administration
fees have been paid, and adequate performance guarantees have been
posted to provide for the cost to the City of performing work that
may be necessary to protect adjacent property owners and the public
interest in the event that such clearing, grading and/or further development
of the site is not undertaken.
D.
Such performance guarantees shall include, but are not limited to,
the cost of the City providing drainage facilities necessary to protect
off-tract areas from flooding, screening, or fencing that may be required
and all improvements to be undertaken which are within existing public
rights-of-way or easements.
E.
In addition to the performance guarantee, a developer shall furnish
to the City a separate guarantee, referred to as a "safety and stabilization
bond," in favor of the City, 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.
F.
Prior to any disturbance of the site or commencement of any construction,
the developer shall enter into an agreement with the governing body.
This agreement shall be of a form that is acceptable to the City Attorney
and one in which the developer agrees to abide by the terms and conditions
of approval, construct the required improvements in accordance with
the approved plans, agrees to maintain the site and the constructed
improvements. The developer also shall agree that in the event that
the site and improvements are not maintained, the City can utilize
the cash portions of the performance guarantee to immediately attend
to items presenting a safety hazard.
G.
No development permit shall be issued nor any work commenced on site
until compliance with this section and notice of intention to commence
construction of such improvements shall be furnished to the City Engineer.
H.
At least two weeks prior to the start of any construction the developer
shall notify the City Engineer of his intention to start work so that
a preconstruction meeting can be arranged between the developer and
the City Engineer.
I.
The City Engineer must be notified at least 48 hours in advance of
any on-site development.
