Fair Haven City Zoning Code
§ 30-10.8
Release of Guarantees.
[2002 Code § 16.40.050; Ord. No. 2018-08]
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 Borough Clerk, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to subsection 30-10.2a of this section, 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 bonded 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.
Upon acceptance of the as-built plan information by the Borough Engineer, two mylar and four paper copies of the as-built plan shall be submitted to the Borough.
Thereupon the Borough 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.
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 guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to' subsection 30-10.2a of this section.
b.
The Governing Body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Borough 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 Borough Engineer and appended to the performance guarantee pursuant to subsection 20-10.2a of this section. 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 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.
c.
If the Borough Engineer fails to send or provide the list and report as requested by the obligor pursuant to paragraph a of this subsection 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.
If the Governing Body fails to approve or reject the bonded improvements determined by the Borough 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 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 guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to subsection 30-10.2a of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
d.
In the event that the obligor has made a cash deposit with the municipality 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 Borough may retain cash equal to the amount of the remaining safety and stabilization guarantee.
e.
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.
f.
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.
g.
The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements; which fees shall not exceed the sum of the amounts set forth in the following subsections, Section 30- 10.8h1 through 4. The Borough may require the developer to post the inspection fees in escrow in an amount:
1.
Not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of bonded improvements estimated pursuant to the Municipal Land Use Law.
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 (C.40:55D-53.4).
3.
For those developments for which the reasonably anticipated fees are less than $10,000,00 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 Borough 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 Borough Engineer for inspection, the developer shall file additional deposits of 25% of the reasonably anticipated fees.
5.
The Borough 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 Borough delivers to the developer a written inspection escrow deposit request, signed by the Borough 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.
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 subsection shall be applied by stage or section.
i.
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.