Allentown City Zoning Code
§ 28-5.6
Guarantees Required; Surety; Inspection Fees; Release.
[Added 4-20-2021 by Ord. No. 03-2021]
a.
Before a final plat is signed and sealed by the Borough, and before the applicant records a final subdivision plat, or as a condition of final site plan approval, or as a condition to the issuance of a zoning permit, the Planning Board shall require and shall accept in accordance with the standards adopted by this chapter for the purpose of assuring the installation and maintenance of all required improvements:
1.
The furnishing and filing with the Borough Clerk of a performance guarantee in an amount of 120% of the estimated cost for installation of improvements (as determined by the Borough Engineer) that the Planning Board may deem necessary or appropriate including: streets, grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyors' monuments (as shown on the final map and required by the "Map Filing Law"), 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.
2.
A commitment for a maintenance guarantee to be posted in favor of the Borough of Allentown for a period not to exceed two years after final acceptance of the improvements, in an amount not to exceed 15% of the as-built cost of the improvements.
3.
Such performance and maintenance guarantees may be in one or a combination of the following forms:
(a)
Performance or maintenance bonds written by financially responsible bonding or surety companies maintaining an office in the State of New Jersey and acceptable to the Borough of Allentown, or
(b)
Certified checks for deposit made payable to the Borough of Allentown, or
(c)
Cash deposits (except that cash deposits shall not be allowed for maintenance guarantees), not exceeding 10% of the amount of the bond, or
(d)
Other types of escrow or security approved by the Allentown Borough Attorney.
(1)
The performance and maintenance guarantees and any agreements related thereto shall be approved by the Borough Attorney as to form, sufficiency and execution prior to acceptance by the Allentown Borough Clerk.
(2)
Notwithstanding the above, 10% of the performance bond must be either cash or certified checks for deposit by the Borough of Allentown, and the term of the performance bond or bonds shall be determined by the Borough Engineer based upon the complexity of and the expected time to complete the project and all improvement related thereto.
4.
The amount of the performance guarantees may be reduced by the Borough Council by resolution, upon request of an applicant, when portions of the improvements have been certified by the Borough Engineer as having been completed and installed in accordance with the Allentown Borough ordinances and inspected by the Borough Engineer. Such reduction of the performance guarantee amount shall not be deemed a waiver of any rights that the Borough of Allentown has pursuant to the maintenance guarantees, nor shall it be construed as acceptance of the improvements by the Borough unless specifically recommended by the Borough Engineer and dedication of the improvements is accepted by the Borough.
5.
In the event that other governmental agencies or governmental public utilities automatically shall own the utilities to be installed upon completion and acceptance, or the improvements are covered by a performance or maintenance guarantee to another governmental agency or utility, no performance or maintenance guarantee, as the case may be, shall be required by the Borough for such specific utilities or improvements.
6.
Upon request of an applicant, the time periods allowed for installation of improvements may be extended, in whole or in part, by resolution of the Borough Council, but only after the Borough Council has received a recertification from the Borough Engineer as to the cost of the improvements to be extended and the applicant has posted performance guarantees acceptable to the Borough Attorney in an amount equal to 120% of the recertified cost and time extension in a form acceptable to the Borough Attorney.
b.
If the required improvements are not completed or corrected in accordance with the performance guarantee or the improvements installed are not maintained and repaired satisfactorily in accordance with the maintenance guarantee, the obligor and surety, if any, shall be jointly and severally 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 at the cost and expense of the obligor and surety.
c.
When substantially all of the required improvements have been completed, or substantially completed and connected to or integrated into the Borough systems, the obligor shall notify the Borough Council in writing, by certified mail addressed in care of the Borough Clerk, of the substantial completion of the improvements and shall send a copy thereof to the Borough Engineer. Thereupon, the Borough Engineer shall inspect all of the improvements for which the notice was filed and shall file a detailed report, in writing, with the Borough Council, indicating either approval, partial approval or rejection of the improvements with a statement of reasons for any rejection. If partial approval is indicated, the cost of the improvements rejected and approved shall be set forth. For the purposes of guarantees, "substantial completion" shall mean either 75% of all improvements of any type or 75% of any specific improvements installed and connected or integrated into the Borough system.
d.
The Borough Council 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 the report and the action of the approving authority 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 its performance guarantee, except for that portion adequately sufficient to secure provision of the improvements not yet approved, provided further that 30% of the amount of the performance guarantee posted may be retained to ensure completion of all improvements remaining after substantial completion releases. Failure of the Borough Council to send or provide such notification to the obligor within 65 days shall be deemed to constitute approval of the improvements, and the obligor and the surety, if any, shall be released from all liability, pursuant to such performance guarantee for such improvement.
e.
If any portion of the required improvements are rejected, the approving authority may require the obligor to complete such improvements, and, upon completion, the same procedure of notification, as set forth in this section shall be followed.
f.
The maintenance guarantee period shall commence as to each improvement installed, upon the date that the Borough Council takes action specifically approving the installation of the improvement or the date of failure to notify the applicant as contained in paragraph d., above.
g.
At the time that the original performance guarantee and commitment for maintenance guarantee are filed by the applicant with the Borough Clerk, the applicant shall tender to the Borough Clerk cash or a certified check, made payable to the Borough of Allentown, in the amount estimated by the Borough Engineer to be required to reimburse the Borough for the cost of the Borough Engineer's inspection or supervision of the installation of improvements. In the absence of an estimate of fees being made by the Borough Engineer, the amount to be deposited by the applicant shall be 5% of the amount of the performance guarantee. If at any time during the construction of the improvements or before the performance guarantee is released, the Borough Engineer certifies to the Borough Council that the fees deposited are inadequate to reimburse the Borough for the cost of inspection and supervision, the Borough Council shall notify the obligor and surety of the amount of additional fees to be deposited, and the performance guarantee shall not be released until such fees are paid by the applicant to the Borough Clerk.
h.
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 section shall be applied by stage or section. Notwithstanding the above, improvements necessary to interconnect sections or stages and improvements scheduled to be completed in later sections or stages, which improvements are to be mutually utilized by earlier sections or stages as shown on the appeared development plan, shall be guaranteed or bonded coincident with the earlier section or stage.