A.
Improvements requiring guaranty.
[Amended 6-7-1999 by Ord. No. 15-99]
(1)
Before recording final subdivision plats or as a condition
of final site plan approval or as a condition to the issuance of a
zoning permit pursuant to N.J.S.A. 40:55D-65, the approving authority
shall require that the applicant shall have furnished performance
guaranties for the installation of the following on-tract improvements
in accordance with Borough specifications: streets, street signs,
grading, pavement, curbs, gutters, sidewalks, walkways, streetlighting,
shade trees and landscaping or plantings, water mains, fire hydrants,
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 surveyor's monuments, as required
by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.).
(2)
All such required improvements shall be certified
by the Borough Engineer, unless the applicant shall have filed a performance
guaranty sufficient in amount to cover the cost of all such improvements
or uncompleted portions thereof as estimated by the applicant and
approved by the Borough Engineer, in accordance with N.J.S.A. 40:55D-53.4.
B.
Amount of guaranty.
(1)
The performance guaranty shall be furnished in favor of the Borough in an amount equal to 120% of the cost of installation for improvements it may deem necessary or appropriate as specified in Subsection A above.
(2)
The time allowed for installation of the improvements
for which the performance guaranty has been provided may be extended
by the approving authority and the governing body by resolution. As
a condition or as part of any such extension, the amount of any performance
guaranty may 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.
[Amended 4-21-1980 by Ord. No. 8-80; 6-7-1999 by Ord. No. 15-99]
C.
Failure to complete improvements. 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.
Procedure upon completion of improvements.
(1)
Request for improvements; filing of list and report.
[Amended 4-21-1980 by Ord. No. 8-80; 6-7-1999 by Ord. No. 15-99]
(a)
Upon substantial completion of all required
street improvements (except for the top course) and appurtenant 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 Borough Clerk, that the Borough Engineer
prepare, in accordance with the itemized cost estimate prepared by
the Borough Engineer and appended to the performance guaranty, 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 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 olbigor'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.
(b)
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. The report prepared by the Borough 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 Borough Engineer and appended to the performance guaranty.
(2)
Action taken on improvements.
[Amended 4-21-1980 by Ord. No. 8-80; 6-7-1999 by Ord. No. 15-99]
(a)
Approval or rejection of improvements; costs.
[1]
The governing body, 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
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 Borough
Engineer and appended to the performance guaranty. 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 governing body, 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 or correction of the improvements not yet approved,
provided that 30% of the amount of the total performance guaranty
posted may be retained to ensure completion and 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, 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 municipality may retain 30% of the amount of the total performance
guaranty to ensure completion and acceptability of all improvements,
as provided above.
(b)
Failure of Engineer to submit list and report;
failure of governing body to approve or reject improvements.
[1]
If the Borough Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection D(1) within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough 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.
[2]
If the governing body fails to approve or reject
the improvements determined by the Borough Engineer to be complete
and satisfactory or reduce the performance guaranty for the complete
and satisfactory improvements within 45 days from the receipt of the
Borough 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 Borough Engineer and appended to the performance
guaranty; and the cost of applying to the court, including reasonable
attorney's fees, may be awarded to the prevailing party.
(c)
In the event that the obligor has made a cash
deposit with the Borough or approving authority 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.
(3)
If any portion of the required improvements is rejected,
the approving authority may require the obligor to complete such improvements
and, upon completion or correction, the same procedure of notification
as set forth in this subsection shall be followed.
[Amended 6-7-1999 by Ord. No. 15-99]
(4)
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 Borough Engineer.
(5)
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
article shall be applied by stage or section.
[Added 4-21-1980 by Ord. No. 8-80]
(6)
To the extent that any of the improvements have been
dedicated to the Borough on the subdivision plat or site plan, the
municipal governing body shall be deemed, upon the release of any
performance guaranty 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 Engineers.
[Amended 6-7-1999 by Ord. No. 15-99]
E.
Form and term of guaranty. The performance guaranty
shall be approved by the governing body as to form, sufficiency and
execution. Such performance guaranty shall run for a period to be
fixed by the approving authority. 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 one year.
F.
Cost of inspection.
[Added 12-21-1981 by Ord. No. 14-81]
(1)
Prior to beginning construction, the developer shall arrange for a preconstruction conference among the developer, contractor and Borough Engineer. The Borough Engineer shall be notified, by registered mail, by the developer at least 72 hours in advance of the start of construction. The cost of inspections shall be the responsibility of the developer, who shall reimburse the Borough for all reasonable inspection fees by submitting a certified check or bank money order to the Planning Board Clerk. This fee shall be in addition to the amount of the performance guaranty and all application fees as included in § 124-28 and shall be deposited initially in accordance with the following schedule. The funds shall be deposited in an interest-bearing escrow account. Upon completion of the development and all inspections, the developer shall receive an accounting of the expended funds. Any unspent funds shall be returned to the developer. Should the initial deposit be insufficient to cover inspection costs, the developer shall deposit additional sums upon notice from the Planning Board Clerk, each additional deposit being in amounts not to exceed 50% of the initial deposit.
(2)
In the event that required improvements are not completed
within one year of preliminary approval, the Borough Engineer shall
direct the applicant to increase the escrow deposit to reflect the
increase in cost of construction of improvements. Such update in escrow
shall be made annually commencing with the first anniversary of preliminary
approval. The same requirement shall apply to final approvals where
the developer has not completed all improvements prior to final approval.
(3)
Fee schedule. Fees shall be as set forth in Chapter 102, Fees.
[Amended 3-20-1995 by Ord. No. 8-95]
(a)
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 deposit shall be 50% of the
inspection fees. 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 immediately
upon receipt of a request from the Chief Financial Officer.
[Amended 6-7-1999 by Ord. No. 15-99]
(b)
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. 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 make additional deposits of 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.
[Amended 6-7-1999 by Ord. No. 15-99]
A.
Prior to the acceptance of any improvement herein,
a maintenance guaranty shall be furnished in favor of Mendham Borough
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.
B.
Simultaneously with the submission of a maintenance
guaranty, the applicant shall file with the Borough as-built drawings
accurately showing the location, profile and size of all storm drains,
catch basins, sanitary sewers, water mains and all utility and service
connections constructed in the subdivision or site plan.
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 a 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.
