Berkeley Township City Zoning Code
ARTICLE IX
Guarantees and Improvement Procedures
§ 35-41.1 Performance Guarantee Required.
[Ord. No. 94-29 § 118-11A]
Before signing or recording of final subdivision plats or as a condition of final site plan approval or as a condition to the issuance of a zoning permit or in lieu of the installation and construction of required improvements, an applicant shall post a performance guarantee with the Township Clerk for the purpose of assuring the installation and maintenance of on-tract improvements or the uncompleted portion thereof.
a.
The furnishing of a performance guarantee in favor of the Township shall be in an amount equal to 120% of the estimated cost of such improvements.
b.
Where performance guarantees are required 10% of the guarantee shall be in cash.
c.
Any performance guarantee shall be approved by the Township Attorney as to form, content, sufficiency and execution.
d.
The cost of installation of required improvements shall be determined by the Township Engineer.
e.
Improvements covered under a performance guarantee shall at a minimum include: streets, grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, street signs, traffic signs, markings, signals, bulkheads, surveyor's monuments, culverts, storm sewers, drainage structures, parking facilities, erosion control measures and sedimentation devices, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping.
f.
The Township Engineer shall prepare an itemized estimate of the cost of installation of improvements covered by any performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by an applicant with the Township Clerk.
§ 35-41.2 Cash Deposits.
[Ord. No. 94-29 § 118-11B]
a.
In the event that conditions of the guarantees are not performed by the principals within the time required for performance under the terms of the guarantee, the Township shall have the right, in its sole discretion, after recommendation by the Township Engineer, to use all or any portion of the cash guarantee to complete, install or repair such requirements, in part or in whole, and, upon completion of same, account to the principals for the cost of same and pay over to the principals, upon such completion of such requirements, any balance of moneys remaining, provided that all other conditions of the guarantee have been performed.
b.
The use of all or part of the cash guarantee shall in no way be deemed to constitute a waiver of any other rights the Township may have under other guarantees delivered to the Township to ensure performance.
c.
All cash guarantees required herein shall be invested by the Township in interest-bearing accounts in the name of the Township, and the interest earned shall accrue to the benefit of the applicant.
§ 35-41.3 Time Period for Performance Guarantees.
[Ord. No. 94-29 § 118-11C]
a.
Performance guarantees shall run for a period of three years.
b.
The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Governing Body by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the Township Engineer according to the method of calculation set forth herein as of the time of the passage of the resolution.
c.
If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Township for the reasonable cost of the improvements not completed or corrected and the Township may either prior to or after receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the "Local Public Contracts Law."
§ 35-41.4 Maintenance Guarantees.
[Ord. No. 94-29 § 94-29 § 118-11D; Ord. No. 01-21-OAB § 16]
a.
As a condition of release or partial release of a performance guarantee the applicant shall post a maintenance guarantee with the Township Clerk.
b.
Maintenance guarantees shall run for a period of two years from the date of final acceptance of any improvements, with the exception of stormwater maintenance guarantees associated with development in the Pinelands Area of the Township which shall run for a period of four years from the date of final acceptance of any improvement.
c.
All maintenance guarantees shall be in the amount of 15% of the estimated cost of improvements as set forth in the performance guarantee.
d.
An applicant may provide, at his/her option, some or all of any required maintenance guarantee in cash.
§ 35-41.5 Form of Guarantees.
[Ord. No. 94-29 § 118-11E; Ord. No. 04-32-OAB § 1]
Except for the cash guarantee portion of any performance guarantee, performance or maintenance guarantees shall be in the form of cash, a bond from a surety company licensed in the State of New Jersey or an irrevocable letter of credit. All performance or maintenance guarantees or irrevocable letters of credit shall be in the form adopted by the Department of Community Affairs pursuant to N.J.A.C. 5:39-1.
§ 35-41.6 Release of Performance Guarantees.
[Ord. No. 94-29 § 118-11F]
a.
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 Township Council in writing, by certified mail addressed in care of the Township Clerk, that the Township Engineer prepare, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to Subsection 35-41.1, 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 Township Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Township Council, 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 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 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 Engineer and appended to the performance guarantee.
c.
The Township Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the 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 guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Engineer and appended to the performance guarantee. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Engineer. Upon adoption of the resolution by the Township Council the obligor shall be released from all liability pursuant to its performance guarantee, 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 performance guarantee posted may be retained to ensure completion and acceptability of all improvements.
d.
If the Engineer fails to send or provide the list and report as requested by the obligor within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the 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.
If the Township Council fails to approve or reject the improvements determined by the 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 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 Engineer and appended to the performance guarantee; 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 Township 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.
f.
If any portion of the required 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 municipal engineer.
§ 35-41.7 As-Built Drawings Prior to Release of Performance Guarantees.
[Ord. No. 94-29 § 118-11G]
Prior to release of the performance guarantee, the applicant shall file with the Township Engineer as-built drawings to such scale as required by the Township Engineer, accurately showing the location, profile, size and appurtenances of all required improvements constructed within the project. Upon the approval of the improvements by the Township Engineer, stating "I hereby certify that I have inspected all of the improvements required to be installed by ________________ in the project known as ________________ which are covered by ________________ (Bond No. ________), and I certify that all improvements required and covered by the guarantee have been installed in accordance with specifications of the Township of Berkeley and to my satisfaction," the performance guarantee shall be released upon the posting of a maintenance guarantee in the amount of 15% of the actual costs of the required improvements, the maintenance guarantee to run for a period of two years from the date of the Township Engineer's certificate.
§ 35-41.8 Certification of Improvements Before Issuance of Certificate of Occupancy.
[Ord. No. 94-29 § 118-11H]
No certificate of occupancy shall be issued for any dwelling upon a lot fronting on any street within a development or approved section thereof until the Township Engineer certifies that all improvements required hereunder applicable to such lot, including adequate access, have been installed to his satisfaction, including the surface course on the fronting street on which the lot is located. All utility mains and service connections shall be installed before the surface course is placed. The Township Council may waive the requirement that all improvements be installed prior to the issuing of a certificate of occupancy and authorize the issuance of a certificate of occupancy, notwithstanding the lack of installation of such improvements, provided that the subdivider files with the Township Clerk a list certified by the Township Engineer, specifying the improvements not installed, the exact date, including the month and day and year, by which the improvements shall be installed and the particular lots for which such certificates of occupancy are requested, whereupon the Township Council may authorize the granting of certificates of occupancy during a period not exceeding four months from the date of the Engineer's certification without installing such improvements, provided further that no such waivers shall be granted for street signs and seeding; and in any event, the applicant shall in no way be absolved or relieved of the obligation or responsibility to prevent soil erosion. The Construction Official shall be charged with the responsibility of reviewing and enforcing the expiration dates of waivers. In the event that a waiver has expired without the applicant complying with the provisions of the waiver, the Construction Official shall so notify the Township Council for its appropriate action. In the event that certificates of occupancy are applied for in any situation in which all improvements have not been completed, the applicant shall provide, prior to the issuance of such certificates of occupancy, a letter in form satisfactory to the Township Council and signed by the purchaser of the lot from the applicant, setting forth that the purchaser understands that the completion of the improvements is the responsibility of the applicant and that the Township has not accepted the improvements but is relying upon a bond provided by the applicant to the Township, together with a written release and hold harmless agreement, in a form satisfactory to the Township Council relieving the Township from any and all claims that the applicant and purchaser may have against the Township as a result of the authorization to issue certificates of occupancy prior to the installation of all the required improvements as set forth here and above. An application for a waiver, as provided for in this subsection, shall be accompanied by a nonrefundable fee, payable to the Township of Berkeley, in the amount of $180.
§ 35-41.9 Lot Certificate of Occupancy Inspection.
[Ord. No. 94-29 § 118-11I]
§ 35-41.10 Maintenance of Improvements.
[Ord. No. 03-45-OAB § 1]
a.
Maintenance of On-Tract Improvements — Developer/Landowner Responsibility. During the course of development of a tract and construction of improvements, the developer/landowner shall be responsible to insure the safety and proper, on-going maintenance of the facilities and improvements on the tract. The performance guarantee as required by these development regulations and N.J.S. 40:55D-53 are posted to insure the proper installation and maintenance during the performance period, of all improvements installed by the developer/landowner in accordance with the approved plans, specifications and any amendments thereto required for approval of the development by the Planning Board/Board of Adjustment. All on-tract improvements shall be maintained by the developer/landowner as a condition of continued development, use and occupancy of the property. On-tract drainage facilities, including detention and/or retention basins, shall be maintained by the developer/landowner unless accepted by the municipality at the satisfactory termination of the performance period. All drainage ways or drainage structures shall be contained within the drainage easement to permit access by municipal maintenance personnel for inspections of the facilities and for emergency repair of such drainage facilities. Said easements or emergency repair shall not be deemed or in any way construed that the municipality is accepting a dedication or responsible for the maintenance of the drainage facilities.
b.
Snow Removal — Salting/Sanding. Until such time as the privately owned, on-tract improvements installed by the developer have been accepted into Township ownership as set forth in these development regulations or deeded and turned over to a private homeowners' association, the developer/landowner shall be responsible for the removal of snow and sanding or salting of streets, roadways and other areas or rights-of-way for passage.
c.
Performance Guarantee Period. During the time period when the developer/landowner is constructing improvements (performance guarantee period), the developer/landowner shall remove all snow, and salt and/or sand the roadway, street and right-of-way areas within the tract to insure safe passage by all persons and vehicles. Failure to fulfill such responsibility shall be deemed a breach and default of the performance guarantee. If the Township, in the sole discretion of its agents and employees, determine that the health, safety or welfare of persons or property may be affected by the breach of responsibility and performance by the developer/landowner, the Township in such emergency situation shall be authorized to plow and remove snow and sand and/or salt the road, street or right-of-way areas within the development. All costs incurred in the emergency action undertaken by the Township shall be charged against and deducted from the performance guarantee posted by the developer/landowner as a default of their responsibility and obligations to perform under the guarantee. Any such emergency action by the Township shall not be construed as undertaking of any of the developer/landowner's continued obligations or responsibilities; and shall further not be deemed or construed as an acceptance of any proposed dedication of the improvement. The developer/landowner shall indemnify and hold the Township harmless for any damages or injuries to persons or property of the developer, the Township, or others resulting from such emergency action, and such damages shall likewise be charged against and deducted from the performance guarantee.
d.
Billing. The Township Public Works Department shall keep detailed records of the time, materials, equipment and men utilized for such services within the developer/landowner's tract and same shall be submitted to the chief financial officer for billing the cost of such snowplowing, sanding or salting at the current rate established by resolution for such services by the Township Public Works Department and on file in the Municipal Clerk's office. The Township chief financial officer shall forward the bill for services to the developer/landowner indicating the deduction to be made from the performance guarantee.
§ 35-42 INSPECTIONS AND INSPECTION FEES.
[Ord. No. 94-29 § 118-11.1]
a.
All improvements shall be subject to an inspection and approval by the Township Engineer, who shall be notified by the developer at least 48 hours prior to the start of any construction. The developer shall not begin installation of any improvements until approval is received from the Township Engineer. No underground installation shall be covered until inspected and approved. The cost of all improvements shall be borne by the subdivider.
b.
Inspection Fees; Filing Fees; Cash Performance Guarantees.
1.
Prior to the signing of a final plat and prior to the issuance of any building permit or the commencement of any construction, the applicant shall deposit with the Township Clerk inspection fees as hereinafter provided. The Township Engineer or his designee shall estimate the costs of all improvements to cover the costs of engineering services, including inspections and reinspections and other work necessitated by the development of land covered by the approved plat. The costs of all inspections shall be the responsibility of the developer. The inspection fee shall be in addition to the amount of any required performance or maintenance guarantee and shall consist of a sum equal to the following:
Total Cost of Improvements | Anticipated Inspection Fees |
|---|---|
$0 to $50,000 | 10% of the amount; minimum fee of $500 |
$50,001 to $100,000 | $5,000 plus 9% of the amount in excess of $50,000 |
$100,001 to $250,000 | $9,500 plus 8% of the amount in excess of $100,000 |
More than $250,000 | $21,500 plus 7% of the amount in excess of $250,000 |
2.
This fee shall be held in escrow by the Township. Any excess moneys shall be remitted to the developer upon approval of all improvements as provided for herein. Any additional inspection costs shall be paid by the developer prior to the approval of the improvements by the Governing Body as provided for herein.
3.
Escrow deposits for anticipated inspection fees.
(a)
The developer shall reimburse the municipality for all reasonable inspection fees paid to the municipal engineer for the inspection of improvements. The municipality shall require from the developer deposits for the inspection fees, to be placed in escrow accounts, as follows:
(1)
The greater of $500 or 5% of the cost of improvements, which costs shall be determined by the municipal engineer pursuant to N.J.S.A. 44:55D-53.4.
(2)
In lieu of (1) above, 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 to be deposited by the developer shall be 50% of the reasonably anticipated fees.
(3)
In lieu of (1) above, 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 the developer shall be 25% of the reasonably anticipated fees.
4.
Replenishment of escrow account.
(a)
For those developments for which the reasonably anticipated fees are less than $10,000 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 municipal engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees.
(b)
For those developments for which the reasonably anticipated fees are $10,000 or greater, 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 municipal engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees.
(c)
The municipal engineer shall not perform any inspections if sufficient funds to pay for those inspections are not on deposit. In addition, no performance guarantees shall be released and no new building permits or certificates of occupancy shall be reviewed or approved for issuance until the escrow account has been fully replenished.
c.
In the event that the final approval of the development has been granted in stages or sections and hence the construction of the required improvements is to be completed in stages or sections, bonding and inspection of improvements shall also be in stages or sections.
d.
The minimum inspection cost shall be $500.
e.
Whenever fees and cash deposits for performance guarantees paid hereunder shall exceed $5,000, the fees and cash deposits so posted shall be deposited in a banking institution or savings and loan association in the State insured by an agency of the Federal government or any other fund or depository approved for such deposits by the State of New Jersey in an interest-bearing account at the minimum rate currently paid by the institution on time or savings deposits, etc. on an annual basis or at the time the deposit is repaid or applied for the purpose it was deposited; provided, however, that the Township shall retain for administrative expenses a sum equivalent to no more than 33 1/3% of the entire amount, which shall be in lieu of other administrative and custodial expenses. In the event that the interest paid on the deposit for a year does not exceed $100, the same is to be retained by the Township for the costs.
§ 35-43 TAX MAP MAINTENANCE.
[Ord. No. 94-29 § 118-11.2]
Upon receipt of final approval, the applicant shall deposit with the Board Secretary the required Tax Map maintenance fee as set forth in Article VI. No construction permit shall be issued in connection with such subdivision approval unless such cost shall have been posted with the Board Secretary in accordance with this section. The amount posted by the applicant shall be placed by the Township Treasurer in an escrow account, and that portion of the estimated cost which remains unused after the Tax Map has been revised shall be refunded to the applicant.