Wayne City Zoning Code
ARTICLE VIII
Guarantees, Inspections and On-Tract Improvements
§ 134-112 Guarantees.
[Amended 2-15-2012 by Ord. No. 6-2012; Ord. No. 4-2013; Ord. No. 20-2015 § 15; 12-16-2020 by Ord. No. 55-2020]
A.
Before filing of final subdivision plats or recording of minor subdivision deeds, 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-65d, the Township shall require and accept in accordance with the standards and regulations adopted pursuant to N.J.S.A. 40:55D-33a for the purpose of assuring the installation and maintenance of certain on-tract improvements the furnishing of a performance guarantee and provision for a maintenance guarantee in accordance with paragraphs (1) and (2) of this subsection.
(1)
Performance guarantee.
(a)
The developer shall furnish a performance guarantee in favor of the Township in an amount not to exceed 120% of the cost of installation of only those improvements required by an approval or developer's agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed, which cost shall be determined by the Township Engineer according to the method of calculation set forth in section 15 of P.L.1991, c.256 (C.40:55D-53.4) for the following improvements as shown on the approved plans or plat: streets, pavement, gutters, curbs, sidewalks, street lighting, street trees, surveyor's monuments, as shown on the final map and required by "the map filing law," P.L.1960, c.141 (C.46:23-9.9 et seq.; repealed by section 2 of P.L.2011, c.217) or N.J.S.46:26B-1 through N.J.S.46:26B-8, water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements.
The Township Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.
(b)
The Township shall require a performance guarantee to include, within an approved phase or section of a development privately-owned perimeter buffer landscaping, as required throughout Chapter 134 of the Code or imposed as a condition of approval. At the developer's option, a separate performance guarantee may be posted for the privately-owned perimeter buffer landscaping.
(c)
In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a "temporary certificate of occupancy guarantee" in favor of the Township in an amount equal to 120% of the cost of installation of only those improvements or items which remain to be completed or installed under the terms of the temporary certificate of occupancy and which are required to be installed or completed as a condition precedent to the issuance of the permanent certificate of occupancy for the development, unit, lot, building or phase of development and which are not covered by an existing performance guarantee. Upon posting of a "temporary certificate of occupancy guarantee," all sums remaining under a performance guarantee, required pursuant to subparagraph (a) of this paragraph, which relate to the development, unit, lot building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. The scope and amount of the "temporary certificate of occupancy guarantee" shall be determined by the Township Engineer. At no time may the Township hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy guarantee shall be released by the Township Engineer upon the issuance of a permanent certificate of occupancy with regard to the development, unit, lot, building, or phase as to which the temporary certificate of occupancy relates.
(d)
In addition to a performance guarantee required pursuant to subparagraph (a) of this paragraph, a developer shall furnish to the Township a separate guarantee, referred to herein as a "safety and stabilization guarantee," in favor of the Township to be available to the municipality solely for the purpose of returning property that has been disturbed to a safe and stable condition or otherwise implementing measures to protect the public from access to an unsafe or unstable condition, only in the circumstance that:
(i)
Site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure, and
(ii)
Work has not recommenced within 30 days following the provision of written notice by the Township to the developer of the municipality's intent to claim payment under the guarantee. The Township shall not provide notice of its intent to claim payment under a "safety and stabilization guarantee" until a period of at least 60 days has elapsed during which all work on the development has ceased for reasons other than force majeure. A municipality shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.
The amount of a "safety and stabilization guarantee" for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000. |
The amount of a "safety and stabilization guarantee" for a development with bonded improvements exceeding $100,000 shall be calculated as a percentage of the bonded improvement costs of the development or phase of development as follows: |
(i) | $5,000 for the first $100,000 of bonded improvement costs, plus |
(ii) | 2.5% of bonded improvement costs in excess of $100,000 up to $1,000,000, plus 1% of bonded improvement costs in excess of $1,000,000. |
(2)
Maintenance guarantees.
(a)
The developer shall post with the Township, prior to the release of a performance guarantee required pursuant to subparagraph (a), subparagraph (b), or both subparagraph (a) and subparagraph (b) of paragraph (1) of this subsection, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the improvements which are being released.
(b)
The developer shall post with the Township, upon the inspection and issuance of final approval of the following private site improvements by the Township Engineer, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the out-flow pipes and structures of the stormwater management system, if any, which cost shall be determined according to the method of calculation set forth in section 15 of P.L.1991, c .256 (C. 40:55D-53.4).
(c)
The term of the maintenance guarantee shall be for a period not to exceed two years and shall automatically expire at the end of the established term.
(3)
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 maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the Township for such utilities or improvements.
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 in N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.
C.
If the required bonded 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," N.J.S.A. 40A:11-1 et seq.
D.
Completion of street improvements.
(1)
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 governing body 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 A 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 Township Engineer. The request shall indicate which bonded improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Township Engineer shall inspect all bonded improvements covered by the obligor'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.
(2)
The list prepared by the Township Engineer shall state, in detail, with respect to each bonded 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 Township 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 Township Engineer and appended to the performance guarantee pursuant to § 134-112A(1).
E.
Approval by governing body.
(1)
The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Township Engineer, or reject any or all of these bonded 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 Township Engineer and appended to the performance guarantee pursuant to Subsection A of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved bonded 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 and "safety and stabilization guarantee" posted may be retained to ensure completion and acceptability of all improvements. The "safety and stabilization guarantee" shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction. For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to Subsection A of this section, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the municipality may retain 30% of the amount of the total performance guarantee and "safety and stabilization guarantee" to ensure completion and acceptability of all bonded improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a "temporary certificate of occupancy guarantee" has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the municipality below 30%.
(2)
If the Township Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection D of this section within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Township 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 Township 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 Township 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 complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to § 134-112A and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
(3)
In the event that the obligor has made a cash deposit with the Township 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 developer has furnished a "safety and stabilization guarantee," the Township may retain cash equal to the amount of the remaining "safety and stabilization guarantee."
F.
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.
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 Township Engineer.
H. | (1) | The obligor shall reimburse the Township for reasonable inspection fees of the Township Engineer for the foregoing inspection of improvements; which fees shall not exceed the sum of the amounts set forth in subparagraphs (a) and (b) of this paragraph. The Township shall require the developer to post the inspection fees in escrow in an amount: | |
(a) | Not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of bonded improvements that are subject to a performance guarantee under subparagraph (a), subparagraph (b), or both subparagraph (a) and subparagraph (b) of paragraph (1) of Subsection A of this section; and | ||
(b) | not to exceed 5% of the cost of private site improvements that are not subject to a performance guarantee under subparagraph (a) of paragraph (1) of Subsection A of this section, which cost shall be determined pursuant to section 15 of P.L.1991, c.256 (C.40:55D-53.4). | ||
(2) | For those developments for which the inspection fees total less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited in escrow by a developer 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 Township Engineer for inspections, the developer shall deposit the remaining 50% of the inspection fees. | ||
(3) | For those developments for which the inspection fees total $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited in escrow 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 Township Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees. | ||
(4) | If the Township determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to subparagraphs (a) and (b) of paragraph (1) of this subsection, is insufficient to cover the cost of additional required inspections, the Township shall require the developer to deposit additional funds in escrow provided that the municipality delivers to the developer a written inspection escrow deposit request, signed by the Township 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. | ||
§ 134-113 Inspection and tests.
A.
All improvements and utility installations shall be inspected during the time of their installation by the Township Engineer. On-site private improvements relating to drainage, landscaping and circulation as shown on an approved final subdivision or site plan shall also be subject to inspection and approval by the Township Engineer. The cost of said inspection shall be the responsibility of the owner, who shall deposit with the Township Treasurer a fee in accordance with the Township Fee Ordinance.
B.
The Township Engineer's office shall be notified 48 hours prior to scheduling each of the following phases of the work so the work may be inspected:
C.
In no case shall any improvements or utility installation be done without permission from the Township Engineer. At least two working days' notice shall be given to the Township Engineer prior to any construction so that the Township Engineer or a qualified representative may be present at the time the work is to be done.
D.
Streets shall not be paved with a wearing course until all heavy construction is completed and all underground utilities have been installed. Shade trees shall not be planted until all grading and earthmoving is completed. The seeding of grass and the placing of the surveyor's monuments shall be among the last operations.
E.
Inspection by the Township of the installation of improvements and utilities shall not operate to subject Wayne Township to any future liability, including liability for claims or suits, that may arise because of defects or negligence during construction or at any time thereafter. The responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the owner and the owner's contractors, if any.
F.
Conditions and acceptance of improvements. The approval of any application for development by the Township shall in no way be construed as acceptance of any street or drainage system or any other improvement, nor shall such approval obligate the Township in any way to exercise jurisdiction over such street or drainage system or other improvement. No improvement shall be accepted by the governing body unless and until all of the following conditions have been met:
(1)
The Township Engineer shall have certified, in writing, that the improvements are complete and that they comply with the requirements of this chapter.
(2)
The final application for development shall have been approved by the Board.
(3)
The owner shall have filed with the Township Committee a maintenance guarantee in an amount equal to not more than 15% of the cost of installing the improvements, to run for a period of two years. The procedures and requirements governing such maintenance guarantee shall be identical with the procedures and requirements for a performance guarantee set forth in this chapter. The requirements for a maintenance guarantee may be waived by the Township Committee only if the Township Engineer has certified that the improvements have been in continuous use for not less than two years from the date the Township Engineer certified completion of such improvements and during this period the owner has maintained the improvements in a satisfactory manner.
(4)
The owner shall have provided an as-built plan and profiles of all utilities and roads (three black-and-white prints, plus a mylar copy, to be sent to the Township Engineer) with certification signed and sealed by a New Jersey licensed professional Engineer as to the actual construction as approved by the Township Engineer.
§ 134-114 Maintenance guarantees - Limitations.
The Township shall not require that a maintenance guarantee required pursuant to N.J.S.A. 40:55D-53 be in cash or that more than 10% of a performance guarantee pursuant to that section be in cash. At the developer's option, some or all of a maintenance guarantee may be in cash, or more than 10% of a performance guarantee in cash.
§ 134-115 Appeal procedure for disputed guarantee amounts.
The cost of the installation of improvements for the purposes of N.J.S.A. 40:55D-53 shall be estimated by the Township Engineer based on documented construction costs for public improvements prevailing in the general area of the Township. The developer may appeal the Township Engineer's estimate to the County Construction Board of Appeals pursuant to N.J.S.A. 40:55D-53.4.
§ 134-116 Acceptance of certain public utilities.
If an approving authority includes as a condition of approval of an application for development pursuant to N.J.S.A. 40:55D-1 et seq. the installation of street lighting on a dedicated public street connected to a public utility, then upon notification in writing by the developer to the approving authority and governing body of the Township that (1) the street lighting on a dedicated public street has been installed and accepted for service by the public utility and (2) that certificates of occupancy have been issued for at least 50% of the dwelling units and 50% of the floor area of the nonresidential uses on the dedicated public street or portion thereof indicated by section pursuant to N.J.S.A. 40:55D-38 the Township shall, within thirty (30) days following receipt of the notification, make appropriate arrangements with the public utility for, and assume the payment of, the costs of the street lighting on the dedicated public street on a continuing basis. Compliance by the Township with the provisions of this section shall not be deemed to constitute acceptance of the street by the Township.
§ 134-117 Off-tract improvements.
All off-tract improvements shall be made in accordance with the provisions of N.J.S.A. 40:55D-42.
§ 134-117.1 Final approval prerequisites.
Prior to the granting of final approval of any subdivision, cluster or planned development and prior to the issuance of any building permits for any land use, including land uses which require site plan approval, pursuant to this chapter, and any residence or other use of property on an unimproved street or where any off-tract improvements have not then been installed, the developer shall pay his pro rata share of the cost of providing any reasonable and necessary street improvements and water, sewerage and drainage facilities, and easements therefor, located outside the property limits of the development but necessitated or required by construction or improvements within the development. All payments shall be in the manner provided in § 134-117.3 below, it being the intent of this section that the developer bear that portion of the cost which bears a rational nexus to the needs created by the development and/or benefits conferred upon such development.
§ 134-117.2 Improvements required.
Off-site and off-tract improvements shall include the following:
A.
All improvements of the types described in this chapter for on-site installation where the need for the providing of such improvements off-site or off-tract is, in whole or in part, made necessary by the proposed development application will confer a benefit upon the developer's lands which are the subject of the development application.
B.
Any improvement or facility, the installation of which is required in the public interest and the public need for which would not arise but for the improvement of the lands which are the subject of the development application and the installation of which would confer a benefit upon the developer's lands which are the subject of the development application. Improvements required to maintain a safe flow of vehicular and pedestrian traffic are specifically declared to be necessary in the public interest.
C.
The installation of new or the extension or modification of existing improvements made necessary in whole or in part by the development application which will be benefited by the improvement.
§ 134-117.3 Determination of nature of improvement.
A.
Consistent with the provisions of this chapter, the Township Council with the assistance of the Board and other appropriate Township departments, shall, prior to the imposition of any conditions on a development application, determine whether the off-site, off-tract improvement is to be constructed by the Township as a general improvement, as a local improvement or whether such development is to be constructed by the developer with a formula providing for partial reimbursement if the improvement specially benefits properties other than those of the developer.
B.
Once the foregoing determination has been made, the municipal agency shall estimate, with the aid of the Township Engineer and such other persons having pertinent information or expertise, the cost of the improvement and the amount by which all properties to be serviced thereby, including the developer's property, will be specially benefited therefrom.
C.
Following the aforesaid determinations by the municipal agency, the developer may be required to provide, as a condition for approval, a bond or cash deposit to ensure payment to the Township of one of the following amounts:
(1)
If the improvement is to be constructed by the Township as a general improvement, an amount equal to the difference between the estimated cost of the improvement and the estimated total amount by which all properties to be serviced thereby, including the developer's property, will be specially benefited by the improvements.
(2)
If the improvement is to be constructed by the Township as a local improvement, then, in addition to the amount referred to in Subsection 134-117.3C(1), the estimated amount by which the developer's property will be specially benefited by the improvement.
(3)
If the improvement is to be constructed by the developer, an amount equal to the estimated cost of the improvement.
D.
The amounts of money required pursuant to this subsection shall be estimated sums, and such amounts shall be redetermined by the Township following the completion of the improvement to ensure that the developer shall pay only his appropriate share of the cost thereof.
E.
Should a developer pay under protest the amount which has been determined as his pro rata share, legal action shall be instituted within one (1) year of such payment in order to preserve the right to a judicial determination as to the fairness and reasonableness of such amount.
§ 134-117.4 Assessment of properties.
A.
The Township shall assess all properties, other than the property of the developer specially benefiting from installation of any off-site or off-tract improvements, based upon the actual cost thereof, as provided in § 4-35 of Chapter 4, Administration of Government, and pursuant to the provisions of the Revised Statutes of New Jersey. However, principal amounts received by the Township from such assessments, together with interest from property owners who have elected to pay for said assessments over a period of years, shall, in the case where the developer is the installer of the off-site or off-tract improvements, be credited to the real estate account of the applicant's property. In the case where there has been an apportionment of cost against the Township for the required off-site or off-tract improvements and the developer is the installer of the off-site or off-tract improvements, then the Township shall pay its portion of cost to the developer nor more than three months after the completed installations have been approved by the Township Engineer.
B.
In the event of any default in payment of an assessment levied by the Township pursuant to paragraph A above, then the Township shall exercise its remedies elsewhere provided; and, if thereafter the balance of principal and interest due upon the subject assessment has not been fully satisfied by payment to the Township and credit thereof given to the real estate account of the developer's property, then the Township shall forthwith pay said balance to the developer of his then successor in interest.
§ 134-117.5 Developer's share of cost for improvements not installed by him.
In the event that the developer shall not be required to install off-site or off-tract improvements by virtue of the provisions of this chapter, then and in that event there shall be paid to the Township Treasurer the amount of the developer's share of the finally determined cost of the off-site or off-tract improvement. All moneys received by the Township in accordance with the provision of this section shall be deposited in an interest-bearing account, and such funds shall be used only for the improvements for which they were deposited or improvements serving the same purpose. If the improvements are not initiated within a period of 15 years from the date of payment, or other mutually agreeable period of time, all deposited funds shall be returned to the developer, together with accumulated interest.