A. Before final approval of a site plan or major subdivision, the approving authority shall require that the developer furnish performance and maintenance guarantees to assure the ultimate installation and upkeep of the following:
(1) Streets.
(2) Grading.
(3) Pavement.
(4) Gutters.
(5) Curbs or other street borders.
(6) Sidewalks or other pedestrian accessways.
(7) Streetlighting.
(8) Shade trees.
(9) Surveyor's monuments (as shown on the final map and as required by N.J.S.A. 46:23-9.9).
(10) Water mains.
(11) Culverts.
(12) Storm sewers.
(13) Sanitary sewers or other means of sewerage disposal including dry sewer lines designed and installed for eventual connection to a public sewer system.
(14) Drainage structures.
(16) Public improvements of open space.
(17) Environmental protection improvements.
B. As to site plans only, the developer shall be required to furnish performance and maintenance guarantees only for improvements to existing public facilities or facilities which will have off-site or off-tract effects. The installation of other on-site improvements and landscaping (other than those associated with buffers) shall be insured pursuant to the site plan compliance review procedure set forth in § 188-110 of this chapter. The Township Engineer shall in his sole discretion determine whether any particular improvement shall be bonded in accordance with this provision.
A. Purpose. This section insures a pro rata share allocation of the costs of those reasonable and necessary off-tract improvements necessitated or required by construction or improvements within such subdivision or development as authorized by Section 30 of the Municipal Land Use Law, N.J.S.A. 40:55D-42.
B. Definition and principles. An applicant may be required by the municipal agency as a condition of final subdivision and/or site plan approval to contribute or pay his pro rata share of the cost of providing those reasonable and necessary improvements located outside the property limits of the subdivision or development which are necessitated or required by construction or by improvements within such subdivision or development. Such improvements include, but are not limited to, water, sewage, drainage facilities, including land and easements and all items necessary to administer and maintain those public functions but shall not include general public improvements or facilities which benefit all or a substantial portion of the Township. Necessary improvements are those clearly and substantially related to the development in question. Interpretation of the requirement to either install or pay a pro rata share of off-tract improvements shall be interpreted in the context of the Township's authority as vested under the Municipal Land Use Law (N.J.S.A. 40:55D-1 et seq.)
C. Cost allocation.
(1) Full allocation. In cases where off-tract improvements are necessitated by the proposed development, and no other property owner(s) receive(s) a special benefit thereby, the applicant may be required, at his sole expense and as a condition of approval, to provide and install such improvements.
(2) Proportionate allocation.
(a) Where it is determined that properties outside the development will also be benefited by the off-tract improvement, the following criteria shall be utilized in determining the proportionate share of the cost of such improvements to the developer.
(b) Allocation formula.
[1] Drainage improvements. The applicant's proportionate share of stormwater and drainage improvements, including the cost of all studies of drainage need or requirements, the purchase of land for easements, the installation, relocation or replacement of storm drains, culverts, catch basins, manholes, riprap, improved drainage ditches and appurtenances thereto, and installation, relocation or replacement of other storm drainage facilities or appurtenances associated herewith, shall be determined as follows:
[a] The capacity and the design of the drainage system to accommodate stormwater runoff shall be based on the methods and standards consistent with this chapter, computed by the developer's engineer and approved by the engineer of the municipal agency.
[b] The capacity of the enlarged, extended, or improved system required for the development and areas outside of the developer's tributary to the drainage system shall be determined by the developer's engineer and shall be subject to the approval of the engineer of the municipal agency. The plans for the improved system shall be prepared by the developer's engineer and the estimated cost of the enlarged system calculated by the engineer of the municipal agency. The pro rata share for the proposed improvement shall be computed as follows:
[2] Roadways and transportation facilities. The applicant's proportionate share of street improvements, alignment, channelization, barriers, new or improved traffic signalization, signs, curbs, sidewalks, streetlighting, trees, utility improvements uncovered elsewhere, the construction or reconstruction of new or existing streets, and other associated street or traffic improvements shall be as follows:
[a] The applicant shall provide the engineer of the municipal agency with the existing and anticipated future peak-hour flows for the off-tract improvements.
[b] The applicant shall furnish a plan for the proposed off-tract improvement, which shall include the estimated peak-hour traffic generated by the proposed development and the proportion thereof which is to be accommodated by the proposed off-tract improvement. The ratio of the peak-hour traffic generated by the proposed development, which is to be accommodated by the off-tract improvement, to the future additional peak-hour traffic anticipated to impact the proposed off-tract improvement shall form the basis of the proportionate share. The proportionate shall be computed as follows:
[3] Sanitary sewers. The applicant's proportionate share of distribution facilities, including the installation, relocation or replacement of collector, trunk and interceptor sewers, and associated appurtenances, shall be computed as follows:
[a] The capacity and the design of the sanitary sewer system shall be based on the requirements and standards set forth in this chapter.
[b] The Howell Township Municipal Utilities Authority Engineer shall provide the applicant with the existing and reasonably anticipated peak-hour flows, as well as capacity limits of the affected sewer system.
[c] If the existing system does not have adequate capacity to accommodate the applicant's flow, given existing and reasonably anticipated peak-hour flows, the pro rata share shall be computed as follows:
[4] Water supply. The applicant's proportionate share of water distribution facilities, including the installation, relocation, or replacement of water mains, hydrants, valves, and associated appurtenances, shall be computed as follows:
[a] The capacity and the design of the water supply system shall be based on the requirements and standards set forth in this chapter.
[b] The Howell Township Municipal Utilities Authority Engineer shall provide the applicant with the existing and reasonably anticipated capacity limits of the affected water supply system in terms of average demand, peak demand, and fire demand.
[c] If the existing system does not have adequate capacity as defined above to accommodate the applicant's needs, the pro rata share shall be computed as follows:
D. Escrow accounts.
(1) Where the proposed off-tract improvement is to be undertaken at some future date, the monies required for the improvement shall be deposited in an interest-bearing account to the credit of the Township in a separate account until such time as the improvement is constructed.
(2) If the off-tract improvement is not begun within 10 years of deposit, all monies and interest shall be returned to the applicant upon his request. An off-tract improvement shall be considered "begun" if the Township has taken legal steps to provide for design and financing of such improvement.
(3) If the applicant does not request the return of the money within a period of one year, the money shall be placed in the Township's general capital improvement fund and shall not be returnable to the applicant thereafter.
E. Redetermination upon completion of improvements.
(1) Upon completion of off-tract improvements required pursuant to this section, the developer's liability hereunder shall be recalculated in accordance with the actual, as compared with the estimated, cost of the improvements. To the extent that it shall decrease the amount thereof, the Township shall forthwith refund the amount of such decrease to the developer.
(2) In the event the payment by the applicant provided for herein is less than his share of the actual cost of the off-tract improvements, then the applicant shall be required to pay the appropriate share of the cost thereof.
(1) Where an application for development suggests the need for off-tract improvements, whether to be installed in conjunction with the development in question or otherwise, the municipal agency shall forward to the Township Council a list and description of all such improvements, together with a request that the Council determine and advise the municipal agency of the procedure to be followed in installation thereof, including timing. The municipal agency shall defer final action on the application for development until receipt of the Township Council's determination or the expiration of 90 days after the forwarding of such a list and description to the committee without determinations having been made, whichever comes first.
(2) The Township Council, within 90 days after receipt of said list and description, shall determine and advise the municipal agency of the procedure to be followed and may suggest conditions of approval, if any, to adequately protect the Township. In the event that the municipal agency is required by statute to act on the application prior to receipt of the Township Council's determination as to installation and/or payment of pro rata share of off-tract improvements, it shall request the applicant to consent to an extension of time, within which to act, of sufficient duration to enable the Township Council to make the aforesaid determination. In the event that the applicant is unwilling to consent to the requested extension of time, the municipal agency shall, in its discretion, either itself determine the procedure to be followed in installation and/or payment of pro rata share of the aforesaid off-tract improvements or shall condition its approval upon the subsequent determination of the Township Council.
G. Implementation of off-tract improvements.
(1) In all cases, applicants shall be required to enter into an agreement with the Township in regard to installation and/or payment of their pro rata share of off-tract improvements, in accordance with this chapter and any other ordinances, policies, rules and regulations of Howell Township, Monmouth County, the State of New Jersey, and any departments, authorities, or agencies thereof deemed necessary.
(2) Where properties outside the subject tract will be benefited by the improvements, the Township Council may require the applicant to escrow sufficient funds in accordance with this chapter to secure the applicant's pro rata share of the eventual cost of providing future improvements and/or facilities based on the standards set forth herein.
(3) General improvement.
(a) Where properties outside the subject tract will benefit by the improvement, the Township Council may determine that the improvement is to be installed by the Township as a general improvement, the cost of which is to be borne as a general expense.
(b) If the Township Council determines that the improvement shall be installed as a general improvement, the Council may direct the municipal agency to estimate, with the aid of the engineer of the municipal agency or such other persons who have pertinent information or expertise, the amount (if any) by which the total cost thereof will exceed the total amount by which all properties including the subject tract will be specifically benefited thereby, and the applicant shall be liable to the Township for such expense.
(c) If the Township Council determines that the improvement shall be installed as a local improvement, all or a part of the cost of which is to be assessed against properties benefited thereby in proportion to the benefits conferred by the improvement in accordance with N.J.S.A. 40:56-1 et seq., the applicant may be required to sign an agreement acknowledging and agreeing to this procedure. In addition, the Township Council may require that the applicant be liable to the Township in addition to the amount of any special assessments against the subject property for benefits conferred by the improvement the difference between the total cost actually incurred and the total amount by which all properties, including the subject tract, are specially benefited by the improvements as may be determined by the Township.
(4) If the Township Council determines that the improvement is to be installed by the applicant, such agreement may contain provisions consistent with the standards in this chapter and any other ordinances, rules, regulations, or policies of the Township of Howell, County of Monmouth, the State of New Jersey, and any departments, authorities, or agencies thereof with jurisdiction therein, whereby the applicant shall be reimbursed by the Township or otherwise, as a result of any participation fees, connection charges, charges paid in regard to developer's agreements with other applicants, and the like; all in accordance with an agreement between the Township Council and the applicant.
(5) In determining the procedures to be followed in the event of the submission of a list and request from the municipal agency, the Township Council shall be guided by the following:
(a) The local trends in regard to the potential of development within the drainage or circulation area in question and the intensity of such development;
(b) The risk or exposure that the neighboring areas are subject to in the event that required improvements are delayed;
(c) The extent to which temporary measures may sufficiently alleviate the condition or conditions requiring the off-tract improvements and the likelihood that larger, regional or subregional facilities will be required in the future to serve the development tract and the general area of the Township in which same is located; and
(d) The extent to which the health, safety and welfare of both present and future municipal residents depend upon the immediate implementation of the off-tract improvement.
A. No final plat shall be approved by the approving authority until all items required to be bonded (on site, off site and off tract) in the public interest, shall have been provided for by a performance guarantee accepted and approved by the governing body in accordance with the requirements of this section; and in addition thereto, the developer has delivered to the Township Clerk a certified check or money order in the amount of the inspection fees to be paid pursuant to Subsection E of this section.
B. A performance guarantee cost estimate shall be submitted to the approving authority by the Municipal Engineer as part of his report on final plat review. The approving authority may request the Municipal Engineer to review and update this estimate from time to time as required.
C. The proposed performance guarantee required for final plat approval shall be submitted to the Township Engineer and Township Attorney for recommendations as to accuracy and form, then to the governing body for approval and acceptance by resolution. Final plat approval shall not be deemed to be effective until the performance guarantee has been accepted and approved by the governing body. The performance guarantee shall consist of the fo1lowing:
(1) A performance guarantee cost estimate prepared by the Township Engineer. The total value of the performance guarantee to be submitted by the developer to the Township shall equal 120% of the performance guarantee cost estimate.
(2) A performance bond in which the developer shall be principal and an acceptable surety company licensed to do business in the State of New Jersey shall be surety. The maximum value of the bond shall be 90% of the total value of the performance guarantee as hereinbefore described. In lieu of posting such a performance bond, the developer shall deposit with the Township Clerk cash or certified check made payable to the Township of Howell, in the full amount of the performance guarantee.
(3) If a performance bond is posted, as hereinbefore described, the remaining 10% of the total value of the performance guarantee, as hereinbefore defined, shall be paid in the form of cash or certified check made payable to the Township of Howell. In the event of default, the 10% cash fund herein mentioned shall be first applied to the completion of required improvements and the performance bond shall thereafter be resorted to, if necessary for the completion of the improvements.
D. For legal services provided by the Township Attorney in connection with a development application, the developer shall pay fees to the Township Clerk for the following as set forth in Chapter 139, Fees:
(1) For preparation of the developer's agreement.
(2) For review of initial performance guarantees and the preparation of any initial resolutions in connection therewith.
(3) For the review of subsequent, substituted, reduced or modified performance guarantees, review of maintenance guarantees and the review of any amendments or extensions to letters of credit, together with any required resolutions.
E. For services provided by the Township Planner in connection with review of request for conceptual zone changes which will result in an application for a major subdivision or site plan approval or in conjunction with an application for a major subdivision, the applicant shall deposit with the Township Clerk an amount as set forth in Chapter 139, Fees. The Township Planner's fee shall be billed against such deposit until the review is completed or until an application is either approved or rejected. If, prior to action by the Planning Board with respect to an application for which a deposit for planner's fees has been made with the Township Clerk, or if during the course of review of conceptual requests the amount on deposit is reduced to zero, the applicant shall immediately deposit with the Township Clerk an additional amount as set forth in Chapter 139, Fees. Any money not utilized for the purpose for which it was deposited shall be returned to the applicant, less a fee as set forth in Chapter 139, Fees, which shall be in lieu of all administrative and custodial expenses. [Amended 9-15-2003 by Ord. No. 0-03-34]
F. Prior to beginning construction, the developer shall arrange for a preconstruction conference between the developer, contractor and Municipal Engineer. All improvements and utility installation shall be inspected during the time of their installation under the supervision of the Municipal Engineer to insure satisfactory completion. The Municipal Engineer shall be notified by the developer five days in advance of the start of construction. The cost of said inspection shall be the responsibility of the developer. The developer shall reimburse the municipality for all reasonable inspection fees calculated pursuant to this subsection by submitting a certified check or bank money order to the Township Clerk. This fee shall be in addition to the amount of performance guarantee and all application fees as outlined herein and computed as follows: The construction inspection fee is to be calculated from the following tabulation based on the estimated cost of constructing the improvements, which estimate is to be prepared and submitted by the developer's engineer and approved by the Municipal Engineer, with the concurrence of the governing body:
(1) Subdivision inspection fee, including off-site improvements, as set forth in Chapter 139, Fees.
(2) Site plan inspection fees shall be determined and based upon the estimated cost of the on-site improvements as set forth in § 188-44 whether or not bonding is deemed to be required by the Township Engineer in accordance with this section. Such on-site improvements shall not be deemed to include landscape plantings, but shall include buffer plantings.
(a) The engineering inspection fees to be paid are as follows:
[1] For all improvements required to be bonded by the Howell Township Engineer, including buffer plantings, the inspection fees shall be the same as that set forth in Subsection E;
[2] For all on-site improvements associated with industrial and/or commercial development for which the Howell Township Engineer does not require bonding, the inspection fees shall be 60% of the amount set forth in Subsection E;
[3] The minimum fee to be charged for inspection is the sum set forth in Chapter 139, Fees.
(b) The developer shall comply with the requirements of Subsection A concerning a preconstruction conference with the Township Engineer and Subsection F concerning notice to the Township Engineer of each phase of work to be performed and the securing of authorization from the Township Engineer to commence work.
(3) Inspection fee for off-site improvements related to a site plan to be determined based on estimated cost and subdivision inspection fee schedule set forth above. Improvement costs, as estimated in this section, shall be defined to include construction and installation costs of grading, pavement, surveyor's monuments, drainage structures, storm sewers and other means of sewage disposal, water mains, fire-protection features, streets, gutters, curbs, culverts, sidewalks, streetlighting, shade trees, parking areas, landscaping, street signs, erosion control and sedimentation control devices, public improvements of open space, and other on-tract improvements, as set forth in § 188-44.
(4) The developer shall deposit a portion of the inspection fees as calculated above as follows:
(a) 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 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 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, 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 Municipal Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees.
(5) The Municipal Engineer shall not perform any inspection if sufficient funds to pay those inspections are not on deposit. The Municipal Engineer shall issue a stop-work order whenever there shall be insufficient funds on deposit to pay the cost of inspections. No person shall perform any work on items required to be inspected while the stop-work order remains in effect. A stop-work order shall remain in effect until adequate funds as determined by the Municipal Engineer pursuant to ordinance and state law have been deposited. Any person violating this provision shall be subject to a fine of $1,000 and 30 days in jail or both at the discretion of the court, for each day of violation.
(6) 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.
G. No work shall be done without permission from the Municipal Engineer. No underground installation shall be covered until inspected and approved. The Municipal Engineer's office shall be notified after each of the following phases of the work have been completed so that he may inspect the work: road subgrade, curb and gutter forms; curbs and gutters; road paving (after each coat in the case of priming and sealing); drainage pipes and other drainage structures before backfilling; shade trees and planting strips; street name signs; and monuments.
H. Electrical, gas, telephone and all other utility installations installed by utility companies shall not be subject to the inspection requirements contained herein.
I. Occupancy permits will be issued only when the installation of curbs, utilities, functioning water supply and sewage treatment facilities, necessary storm drainage to insure proper drainage of the lot and surrounding land, rough grading of lots, soil stabilization, base course for the street and driveway, and sidewalks are installed to serve the lot and structure for which the permit is requested. Streets shall not receive surface course paving until all heavy construction is completed. Shade trees shall not be planted until all grading and earth moving is completed. Seeding of grass areas shall be the final operation, subject to appropriate soil erosion control measures.
J. Inspection by the Municipal Engineer of the installation of improvements and utilities shall not subject the municipality to liability for claims, suits, or liability of any kind that may arise because of defects or negligence, it being recognized that the responsibility to provide proper utilities and improvements and to maintain safe conditions at all times on all parts of the tract whether construction is waiting to start, is in progress, or is completed or any combination of conditions on all or part of the tract is upon the developer and his contractors or subcontractors, if any.
K. After completing the construction of the improvements covered by the performance guarantee, the developer shall prepare two sets of the improvements and utility plans and the profiles amended to read "as constructed" and apply to the governing body for final inspection of the work. The Municipal Engineer shall, within 60 days from completing the inspection, report in writing to the governing body 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 shall be set forth.
L. Extension of allotted time; approval of improvements.
(1) 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 as determined at of the time of the passage of the resolution.
(2) The governing body shall either approve, partially approve or reject the improvements, on the basis of the report of the Municipal Engineer and shall notify the obligor in writing by certified mail, the contents of said report and the action of said approving authority with relation thereto, no later than 65 days after the receipt of 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 that 30% of the amount of the performance guarantee posted may be retained to insure completion of all improvements. Failure of the governing body 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 surety, if any, shall be released from all liability pursuant to such performance guarantee for such improvements.
M. If any portion of the required improvements is 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.
N. The approval of any site plan under this chapter by the approving authority shall in no way be construed as acceptance of any street, drainage system, or other improvements required by this chapter, nor shall such site plan approval obligate the Township in any way to maintain or exercise jurisdiction over such street, drainage system or other improvement. Acceptance of any street, drainage system or other improvement shall be implemented only by favorable action by the governing body.
O. Maintenance guarantee. No improvement shall be acceptable by the governing body unless and until all of the following conditions have been met:
(1) The Municipal Engineer shall have certified in writing that all the improvements are complete and that they comply fully with the requirements of this chapter and of other applicable local ordinances.
(2) Provision for a maintenance guarantee to be posted with the governing body for a period not to exceed two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the improvement. 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, as the case may be, shall be required by the municipality for such utilities or improvements.
(3) All maintenance guarantees shall be formally released by the Township Council by resolution. Thirty days prior to the release of a maintenance guarantee, the Township Engineer shall have inspected the improvement for which the maintenance guarantee had previously been posted and shall certify to the Township Council, in writing, that the improvement is free of defects and that the maintenance bond may be released. If any defects are found by the Engineer during the course of his or her inspection, then, in such event, the Township Engineer shall present a claim against the maintenance guarantee for the repair/replacement of the improvement.
P. Developer's agreement. The developer shall enter into a developer's agreement with the governing body prior to the signing and recording of final major subdivision plats and as a condition of final site plan approval. In the case of a site plan, the developer shall enter into a developer's agreement with the governing body prior to commencement of on-site/off-site improvements. This agreement shall be of a form that is acceptable to the Township Attorney and Township Engineer. The developer's agreement shall require that the developer agrees to abide by the terms and conditions and the Board approval, construct the required improvements in accordance with the approved plans, agree to maintain the constructed improvements, including but not limited to, payment of streetlighting charges, snow removal, maintenance of storm drain, sewer and water facilities. The developer shall also agree that in the event that improvements are not maintained, the Township can utilize the cash portions of the performance guarantees to immediately attend to such items.
