Lakewood Township City Zoning Code
ARTICLE IV
IMPROVEMENT GUARANTEES
18-400 Performance Guarantees.
As a condition of final development approval, the Reviewing Board shall require, for the purpose of assuring the installation of all improvements required under such approval, that the applicant furnish a performance guaranty in accordance with the following standards:
A.
The performance guaranty must run in favor of the Township, and be in an amount not to exceed 120%, rounded to the nearest dollar, of the cost of installation of improvements the Township or Reviewing Board may deem necessary or appropriate, including, but not limited to, streets, grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor's monuments (as shown on the final map and required by the Map Filing Law, (N.J.S.A. 46:23-9.9), water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements and landscaping, provided that no more than 10% of the total performance guaranty shall be in cash and the balance shall be in the form of a surety bond issued by a bonding company licensed to do business in the State of New Jersey and rated A+ or better by A.M. Best or a letter of credit issued by a banking institution licensed to do business in the State of New Jersey. Such bond or letter of credit must be approved and accepted by the Township governing body. The Township Engineer shall review the improvements required by the Reviewing Board which are to be bonded and itemize their cost. This itemization shall be the basis for determining the amount of the performance guaranty required by the Township and the inspection fees required by this Code. The Township Engineer shall forward his/her estimate of the cost of improvements to the applicant within 30 days after the date of receipt of a request sent by certified mail for this estimate. Any performance guaranty delivered to the Township Clerk pursuant to this section shall be for an initial term of not less than two years, shall provide for automatic one year renewals and shall only be terminable on the date of expiration, either of the original period or any renewal period, upon not less than 60 days advanced written notice. In the event that any of the improvements to be installed are covered by a performance guaranty to another governmental agency, no performance guaranty shall be required from the Township for such improvements.
B.
If at any time during the period of time between acceptance of the initial performance guaranty and the date of the Township Committee formally releases such performance guaranty, the Township Committee has reasonable cause to doubt the value, legality, enforceability or effectiveness of such guaranty, all development activity for which such guaranty was established shall be discontinued until such time as a substitute guaranty, in form and substance equivalent to the guaranty which was required to be in place at the time the status of the original guaranty was questioned, shall be delivered to and accepted by the Township Committee. By way of illustration and not limitation, the following shall be instances of reasonable cause to doubt the value, legality, enforceability or effectiveness of such guaranties:
1.
The company issuing the bond shall cease to do business, declare insolvency or bankruptcy or be forced into involuntary bankruptcy.
2.
The bank, savings and loan, credit union, mortgage banking company or other banking or banking-like entity issuing a letter of credit shall become insolvent, be taken over by any governmental or quasi-governmental agency or company or otherwise cease to do business.
3.
The issuer of any performance guaranty shall serve on the Township, notice of termination or cancellation of such guaranty.
C.
The amount of any performance guaranty may be reduced by the Township Committee, by resolution, when portions of the improvements have been certified by the Township Engineer to have been completed. The time allowed for installation of the improvements for which the performance guaranty has been provided may be extended by the Township Committee by resolution.
D.
If the required improvements are not completed or corrected in accordance with the finally approved development plans and approvals, the obligor and surety shall be liable thereon to the Township for the reasonable cost of the improvements not completed or corrected, and the Township, either prior to or after the receipt of the proceeds of the performance guaranty, may complete such improvements.
E.
When all of the required improvements have been completed, the obligor shall notify the administrative officer, in writing, by certified mail, with a copy to the Municipal Clerk, of the completion of such improvements and shall send a copy thereof to the Township Engineer. Upon receipt of this notice, the Township Engineer shall inspect all of the improvements and shall file a detailed report within 45 days, in writing, with the Administrative Officer, indicating either approval, partial approval or rejection of the improvements with a statement of reasons for rejection. If partial approval is indicated, the cost of the improvements rejected shall be set forth.
F.
The Township Committee shall either approve, partially approve or reject the improvements on the basis of the report of the Township Engineer and shall notify the obligor, in writing, by certified mail, of the contents of the Township Engineer's report and the action of the Township Committee with relation thereto not later than 45 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 the performance guaranty except for that portion adequately sufficient to secure completion of the improvements not yet approved. Failure of the Township Committee to send or provide such notification to the obligor within 45 days shall be deemed to constitute approval of the improvements and the obligor and surety, if any, subject to the requirements of § 18-401 below, shall be released from all liability pursuant to such performance guaranty.
G.
If any portion of the required improvements is rejected, the obligor shall complete such improvements, and, upon completion, the same procedure of notification as set forth in this section shall be followed.
18-401 Maintenance Guarantees.
A.
As a condition of the final release of all performance guaranties posted by an applicant with respect to any development approval within the Township, the applicant shall deliver to the Township Clerk, for the purpose of assuring that all improvements installed in accordance with such development approval have been installed in a good and workmanlike manner and that all materials are fit for their intended purpose, a maintenance guarantee in accordance with the following standards:
1.
The maintenance guarantee shall be for a period of two years commencing on the date that the Township Committee finally accepts the improvements as being complete, in an amount not to exceed 15% of the total cost of the improvements as set forth on the Township Engineer's estimate for such improvements completed with § 18-400A1. In the event that other governmental agencies or public utilities automatically will own the utilities or improvements which are installed or the improvements are covered by a maintenance guaranty provided by the applicant to another governmental agency, no maintenance guaranty in favor of the Township shall be required for such utilities or improvements. Such maintenance guaranty shall be in the form of a surety bond issued by a surety licensed to do business in the State of New Jersey and rated A+ or better by A.M. Best, or a letter of credit issued by a banking institution licensed to do business in the State of New Jersey. Such maintenance guaranty shall be approved and accepted by the Township Committee.
2.
If at any time prior to the expiration of the maintenance guaranty, the Township Committee has reasonable cause to doubt the value, legality, enforceability or effectiveness of such guaranty, the obligor must deliver to the Township Clerk a substitute guaranty, equivalent to the guaranty which was required to be in place at the time the status of the original guaranty was questioned. By way of illustration and not limitation, the following shall be instances of reasonable cause to doubt the value, legality, enforceability or effectiveness of such guaranties:
a.
The company issuing the bond shall cease to do business, declare insolvency or bankruptcy or be forced into involuntary bankruptcy.
b.
The bank, savings and loan, credit union, mortgage banking company or other banking or banking-like entity issuing a letter of credit shall become insolvent, be taken over by any governmental or quasi-governmental agency or company, or otherwise cease to do business.
B.
If the Township determines that any improvements which are covered by such maintenance guaranty have not been completed in a good and workmanlike manner, or that any materials which were incorporated into such improvements are not fit for their intended purpose and the obligor, under such maintenance guaranty, has not corrected the improvements to the satisfaction of the Township Engineer within 30 days after written notice of such defect, the obligor and the surety shall be liable on such guaranty to the Township for the reasonable cost of correcting and/or replacing such improvements, and the Township, either prior to or after the receipt of the proceeds of such guaranty, shall have the right, but not the obligation, to complete corrective work or replacements of such improvements which may be required.
18-402 Escrows.
A.
Application Escrow.
1.
All fees other than application fees, inspection escrows and miscellaneous fees shall be escrow fees to pay the services of any professional personnel employed by the Reviewing Board or the Township Committee to process, review, inspect, study or make recommendations to such Reviewing Board or the Township Committee concerning the nature and substance of the applicants application and/or to pay the services of any such professional personnel and the costs and expenses incurred by such professional personnel, the Reviewing Board and/or the Township Committee to create, amend or modify, including, but not limited to, the costs and expenses to draft, finalize and publish, the official Tax Map and/or Zoning Map of the Township, which creation, amendment and/or modification is necessitated by the approval of the applicant's application.
2.
If during the existence of this escrow account the balance of funds held by the Township shall be insufficient to cover vouchers submitted by the professionals, the applicant shall deposit additional sums with the Township to voucher the amount of the deficit and the anticipated amount to cover all remaining work within 10 days after receipt of written notice from the Township of the amounts owed. In the event that an applicant fails to deposit the additional escrow moneys as required within the time set forth in this subsection, the Township, through its agents and employees, shall take whatever action it deems necessary in order to compel the payment of the escrow amount. In addition, the professional personnel may take any action individually as they deem necessary to satisfy the vouchers submitted. Notwithstanding the foregoing, any applicant who does not deposit such additional escrow moneys within 30 days after receipt of written notice from the Township of the amounts owed shall be charged a late fee equal to 10% times the amounts owed from the date such sums were due pursuant to such notice until paid in full (including all accrued late fees). No permit, approval or certificate shall be issued to any applicant or property owner by the Reviewing Board, Zoning Officer, Township Committee, Township Clerk or any other agency of the Township unless all amounts owed pursuant to this section by such applicant or owner or with respect to the subject property are paid in full.
3.
All excess moneys in the escrow account will be returned to the applicant after the approving authority has granted final approval and signed the subdivision plat or site plan in accordance with the procedures specified in N.J.S.A. 40:55D-53.2.d., with a statement of money expended against the account. If at any time prior to final approval the applicant elects to withdraw his request for approval and abandon the project, any moneys remaining in the escrow account, after all proper charges have been paid, will be returned to the applicant with a statement of money expended against the account.
B.
Inspection Escrows
The cost of all inspections by the Township Engineer shall be the responsibility of the applicant, and the applicant shall deposit the necessary inspection fees with the Township prior to the issuance of a building permit or zoning permit. The inspection escrow shall be in addition to the amount of any required performance or maintenance guarantees, application fees and application escrows and shall consist of a sum equal to the greater of five hundred (500) dollars or 5% of the total cost of the improvements as determined pursuant § 18-400 above. If the calculated amount of inspection escrows is $10,000 or greater, the applicant shall have the right to deliver the inspection escrows to the Township in four installments, the initial amount deposited being not less than 25% of the calculated escrow amount. When the balance held in the escrow drops to 10% of the calculated amount due to the fact that escrowed funds have been paid to the Township Engineer for invoiced inspections which have occurred, the applicant shall make additional deposits of 25% of the calculated amount. The Township Engineer shall not perform any inspection if insufficient funds to pay those inspections are not on deposit. Funds which are unexpended shall be returned to the applicant upon request, in writing, to the Reviewing Board in accordance with the procedures specified in N.J.S.A. 40:55D-53.2.d. The applicant shall immediately pay upon demand all additional site inspection costs as are necessary and reasonable.
18-403 Developers Agreements.
[Ord. No. 2010-28 § 1]
A.
As a condition to major subdivision or major site plan approval, the Township may require the developer enter into an agreement with the Township at resolution compliance, setting forth the implementation requirements for a development. The substance of the developer's agreement shall be consistent with the laws of the State of New Jersey, this chapter 18 and the conditions and standards applicable to developments. The developer's agreement shall be in a form satisfactory to the Township Attorney and Township Committee and shall include, but may not be limited to, conditions of approval listed in the final resolution of approval and provisions relating to the following:
1.
The disposition of lands required to be set aside for public, semipublic and/or open space and outdoor recreation uses.
2.
The phasing, financing and extent of off-tract traffic improvements.
3.
Public approvals and municipal and developer actions required to implement public infrastructure improvements, such as public sewers and stormwater control.
4.
The developer's obligation to maintain the development and comply with site plan approval conditions dealing with signage, building exteriors, landscaping, drainage, retention/detention basins, security, buffer areas and open spaces, trash removal and internal roadways.
5.
Cleanup of any environmentally contaminated area.
6.
Consideration of municipal impacts.
7.
The timing of the construction of recreational facilities including parks, playgrounds, clubhouses and pools.
8.
Open space area. The amount of the gross acreage that shall be open space area, which areas shall not include paved roadways or parking areas.
9.
Buffer areas as required by the development approval.