A. Requirements; form; rights.

(1) Improvements; cost.

(a) Prior to the signing of a final plat, issuance of a development permit and/or the commencing of any clearing, grading or installation of improvements, the developer shall have filed with the Township Clerk a performance guaranty sufficient in amount to equal the total cost to the Township, as estimated by the Township Engineer, for constructing those on-site, off-site and off-tract improvements necessary to protect adjacent property and the public interest in the event that development of the subdivision or site was not completed. Such improvements shall include but are not limited to:

[1] Drainage facilities necessary to protect off-tract areas from flooding;

[2] Erosion-control facilities;

[3] Required screening and fencing;

[4] All improvements within public rights-of-way and easements;

[5] The cost of seeding or otherwise stabilizing the site or subdivision; and

[6] The cost of preparing as-built drawings.

(b) Such guaranty shall assure the installation of such improvements on or before an agreed date, guarantee the completion of all improvements without damage to or interference with adjacent properties or public facilities and hold the Township Committee and Township Planning Board or Zoning Board of Adjustment and their employees and agents harmless with respect to any acts of the developer, its agents, successors or assigns.

(c) The total estimated cost to the Township of constructing all improvements shall be based upon the estimated contract construction costs, which would prevail upon expiration of the guaranty period, and shall also include appropriate allowances for contract-related costs such as engineering, legal, financial and other usual costs, which shall be estimated to be 20% of the estimated contract construction costs.

(d) Such performance guaranty may be in the form of cash, certified check, negotiable securities, a performance bond issued by a bonding company or surety company approved by the Township Committee or any other type of surety acceptable to and approved by the Township Attorney and Township Committee, provided that at least 10% of the performance guaranty shall be in cash or certified check. The balance of said performance guaranty shall be in the form of cash, certified check, certificate of deposit, an irrevocable letter of credit (said letter to be issued by a financial institution whose deposits are insured by the Federal Savings and Loan Insurance Corporation or Federal Deposit Insurance Corporation) or a bond issued by a surety or bonding company authorized to do business in New Jersey; provided, however, that all rights, including the right to interest with dividends, shall be assigned to the Township of Jackson in a form of assignment acceptable to the Township Attorney for the period of the bond and that the principal amount of the passbook or certificate of deposit, together with interest, shall be returned to the developer upon completion of the bonded improvements, or, in the event of default, both interest and principal shall be used by and for the benefit of the Township in the completion of said improvements.

(2) The form of the performance guaranty shall be subject to the approval of the Township Attorney.

(3) Subject to N.J.S.A. 40:55D-1 et seq., as amended and supplemented, all rights in the performance guaranty, including the right to any interest earned on any deposits, shall belong to the Township of Jackson.

(4) Notwithstanding the requirement of Subsection A(1) above, when a letter of credit which has been previously accepted pursuant to Subsection A(1) as a performance guaranty is about to expire, it may be renewed administratively by the Township Attorney, provided that all pertinent requirements are met by the applicant.

(5) In the event of default, the principal and any interest shall be used for the benefit of the Township in the completion of the improvements.

B. If, at the time the performance guaranty is filed with the Township, the developer has not also filed with the Township proof that any other necessary performance guaranties have been filed and accepted by governmental bodies, authorities, public utility companies and private utility companies other than the Township, which have jurisdiction over improvements in the site or subdivision, the amount of the performance guaranty shall be increased to reflect the cost of such improvements.

C. All performance guaranties shall run to and be in favor of the Township of Jackson in the County of Ocean.

D. The performance guaranty shall be approved by the Township Attorney as to form, sufficiency and execution. Such performance guaranty shall run for a period to be fixed by the Township Committee, but in no case for a term of more than two years. However, with the consent of the owner and the surety, if there is one, the Township Committee may, by resolution, extend the term of such performance guaranty for an additional period not to exceed one year. The amount of the performance guaranty may be revised by the Township Committee from time to time to reflect work progress, increasing costs and changing conditions in regard to the uncompleted or unacceptable portions of the required improvements. If the required improvements have not been installed in accordance with the performance guaranty, the obligor and surety shall be liable thereon, at the option of the municipality, for:

(1) The reasonable cost of the improvements not installed, and, upon receipt of the proceeds thereof, the municipality shall install such improvements; or

(2) The completion of all required improvements.

E. If, during the period of the performance guaranty, the developer fails to prosecute the work of completing the improvements so as to create hazards to life, health, property or public safety, the Township may, after five days' notice perform or cause to be performed any necessary corrective work and deduct the cost thereof from the ten-percent cash or certified check portion of the guaranty. Upon notice of any such deduction, the developer shall, within 10 days, restore the full ten-percent cash balance, or his performance guaranty will be held to be void, and the Township may take action as if final plat approval had not been obtained.

F. Municipal Engineer list and report. [Amended 9-11-2000 by Ord. No. 20-00]

(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 Municipal Clerk, that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactorily completed improvements. If such a request is made, the obligor shall send a copy of the request to the Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon, the Municipal Engineer shall inspect all improvements covered by 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 Municipal 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 Municipal 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 guaranty relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty pursuant to Subsection A of this section.

G. Approval or rejection of governing body. [Amended 9-11-2000 by Ord. No. 20-00]

(1) The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Municipal 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 guaranty relating to the improvements accepted in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guaranty 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 Municipal Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guaranty, 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 total performance guaranty posted may be retained to ensure completion and acceptability of all improvements. For the purpose of releasing the obligor from liability pursuant to its performance guaranty, the amount of the performance guaranty attributable to each approved improvement shall be reduced by the total amount for each such improvement in accordance with the itemized cost estimate prepared by the Municipal 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 improvements would exceed 70% of the total amount of the performance guaranty, then the municipality may retain 30% of the amount of the total performance guarantee to ensure completion and acceptability of all improvements as provided above.

(2) If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection F 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 Municipal 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 improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guaranty for the complete and satisfactory improvements within 45 days from the receipt of the Municipal 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 guaranty for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection A of this section; 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 municipality or approving authority as part of the performance guaranty, then any partial reduction granted in the performance guaranty 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 guaranty.

H. If any portion of the required improvements are rejected, the Township Committee 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.

I. Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the Township Committee or the Township Engineer.

[Added 3-25-2002 by Ord. No. 15-02] The installation of any subdivision improvements or the commencement of any clearing and grading subsequent to preliminary approval shall not be undertaken unless the following has been done:

A. If at any time of preliminary approval but prior to the commencement of final approval the developer elects to proceed with the installation of improvements required under this chapter, the developer shall furnish the Township with the final construction drawings and details, which shall be certified by the Township Engineer to be in accordance with the terms and conditions of the subdivision approval.

B. The required construction, inspection, engineering, and administration fees shall have been paid, and adequate performance guarantees as determined by the Township Engineer have been posted to provide for the cost to the Township of performing work that may be necessary to protect adjacent property owners and the public interest in the event that such clearing, grading, installation of all required improvements in accordance with the terms and conditions of the subdivision approval, and/or further development of the site, is not undertaken, completed and/or installed by the developer. Such performance guarantees shall include, but are not limited to, the cost of the Township providing stabilization of the site, drainage facility necessary to protect off-tract areas from flooding, screening or fencing that may be required and all improvements to be undertaken which are within existing public right-of-way or easements as depicted on the approved subdivision plans and in accordance with the terms and conditions of the subdivision approval.

C. Prior to any disturbances of the site or commencement of any construction, the developer shall enter into an agreement with the Township Committee. This agreement shall be of a form that is acceptable to the Municipal Attorney and one in which the developer agrees to abide by the terms and conditions of approval, construct the required improvements in accordance with the approved plans, agree to maintain the site and the constructed improvements. The developer also shall agree that in the event that the site and improvements are not maintained, the Township can utilize the cash portions of the performance guarantee to immediately attend to items presenting a safety hazard and, in the event of a default by the developer, provide that the Township shall have recourse against the performance guarantee which has been posted by the developer.

D. No development permit shall be issued nor any work commenced on site until compliance with this section and notice of intention to commence construction of such improvements shall be furnished to the Township Engineer.

E. At least two weeks prior to the start of any construction, the developer shall notify the Township Engineer of his intention to start work so that a preconstruction meeting can be arranged between the developer and the Engineer. No work shall be commenced until their preconstruction meeting has been conducted.

F. The Township Engineer must be notified at least 48 hours in advance of any on-site development.

A. Duties of Township Engineer, Township Attorney and Township Clerk. No performance guaranties shall be presented for approval of the Township Committee until the municipal officials listed below have performed the following and make certification of their performance, in writing, to the Township Committee.

(1) Township Engineer. The Township Engineer shall:

(a) Where applicable, examine the plat map of a subdivision to make certain that it complies with all state laws and this chapter relative to the preparation and filing of maps or plans for the subdivision of land.

(b) Ascertain that the plat of a site plan or subdivision has been approved by the Ocean County and Jackson Township Planning Boards.

(c) Determine those acts or things the applicant is to do to protect Jackson Township, such as to provide proper drainage, streets, curbs, signs, monuments or any other item or thing and the cost of each, as well as the maximum time he recommends granting the applicant to provide each item or all items.

(d) Determine if the landowner is an individual, corporation or partnership and, if an individual, his full name and address; if a corporation, its correct name, date and state of incorporation, the name of its president and secretary and the location of its principal office in this state; if a partnership, the names and addresses of all partners.

(e) Give the applicant a form of the surety company bond required by the Township of Jackson and all figures, dates and details required by Subsection A(1)(c) above so that the same may be included in the bond to be furnished to the Township and, also, advise the applicant of the amount required to pay the Township as a proper inspection and administration fees.

(f) Deliver to the Township Attorney:

[1] The original copy of the surety company bond of the applicant.

[2] The Township Engineer's written certificate addressed to the Township Committee, which certificate and bond shall be delivered at one and the same time.

[a] The Township Engineer's certificate shall also state and give the nature of cash, or its equivalent, deposited as a portion or all of the performance guaranty (i.e., cash, certified check, cash escrow deposit or other security).

[b] If there is nothing the applicant needs to do under Subsection A(1)(c) above, the certificate shall so state and give the reason therefor.

(2) Township Attorney. Upon the receipt from the Township Engineer of the surety bond and Engineer's certificate, the Township Attorney shall promptly examine said bond and determine whether or not it is correct in form, content and execution. If the bond is not correct, the Township Attorney shall notify the applicant of its shortcomings. When the bond is or has been corrected, the Township Attorney shall make a written certificate to that effect to the Township Committee. Thereupon, said Attorney shall deliver the bond and Engineer's and Attorney's certificates to the Township Clerk.

(3) Township Clerk. Upon the receipt from the Township Attorney of the bond and certificates of the Engineer and Attorney, the Township Clerk shall:

(a) Collect from the applicant the proper fee or fees, if any, payable to the Township in accordance with the Engineer's certificate.

(b) Place the matter of approval of bond(s) on the agenda of the next regular meeting of the Township Committee for its consideration.

(c) Submit the bond, certificate and fees to the Township Committee at the next regular meeting of said Committee.

B. Certificates; form. Each of said certificates shall be dated and written in letter form upon the stationery of the maker or of the Township and shall be signed by him or his authorized agent or representative.

C. Bond requirements. There must be attached to said bond an authority of the surety company empowering the person or persons who executed said bond for the surety company to do so. If the bonding company is not a New Jersey corporation, there should also be attached to the bond proof of its authority to do business in New Jersey and a copy of its last financial statement, made not more than one year before, showing its financial conditions. If the principal on the bond is a corporation, there must be attached to the bond a certified copy of a resolution adopted by its Board of Directors authorizing the execution and delivery of said bond. Said bond must also bear the corporate seal of the surety company and the seal, corporate or otherwise, of the principal.

D. Copies. The Township Clerk shall keep a supply of copies of these bond requirements in his office for the use of applicants and the general public.

A. General requirements.

(1) As a condition of final subdivision and/or site plan approval, the municipal agency may require an applicant to either install or pay his pro rata share of the costs of providing necessary circulation improvements, water, sewerage, drainage facilities, any other public improvements or facilities (i.e., public recreation, public buildings, public equipment), including land and easements and all items necessary to administer and maintain the Township's public functions, located off tract of the property limits of the subdivision or development but necessitated or required by the development. "Necessary" improvements are those clearly and substantially related to the development in question.

(2) The municipal agency shall provide, in its resolution of approval, the basis of the required improvements.

(3) The capacity and design of proposed improvements shall be based upon the circulation plan element, utility service plan element and community facilities element of the adopted Jackson Township Master Plan or other comprehensive subarea improvement plan or study.

(4) The improvement and/or widening of a stream or the construction of drainage or other improvements in a street or road fronting on the tract to be subdivided, improved and/or developed shall not constitute an off-tract improvement, and the cost of said improvement shall not be allocated.

(5) The proportionate or pro rata amount of the cost of such facilities within a related or common area shall be based on the criteria contained herein.

B. Cost allocation.

(1) Full allocation. In cases where off-tract improvements are necessitated by the proposed development and where 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] 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 Township Engineer with the existing and anticipated future peak hour flows for the off-tract imp rovements.

[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 share shall be computed as follows:

[2] Drainage improvements. The applicant's proportionate share of stormwater and drainage improvements, including 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 therewith, 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 Township Engineer.

[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 subject to approval of the Township Engineer. 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 Township Engineer. The prorated share for the proposed improvement shall be computed as follows:

[3] Water supply. The applicant's proportionate share of water distribution facilities under the jurisdiction of the Township, 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 Jackson Township 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:

[4] Other improvements. The applicants' proportionate share of other capital improvements shall be computed as follows:

C. Escrow accounts.

(1) Where the proposed off-tract improvement is to be undertaken at some future date, the moneys 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 moneys 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 with 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.

D. 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 that 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.

E. Referral to Township Committee.

(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 Committee a list and description of all such improvements, together with a request that the Committee 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 Committee'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 Committee, 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.

(3) In the event that the municipal agency is required by statute to act on the application prior to receipt of the Township Committee'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 Committee 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 Committee.

F. 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 Jackson Township, Ocean 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 Committee 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 Committee 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 Committee determines that the improvement shall be installed as a general improvement, the Committee 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 excess 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 Committee determines that the improvement shall be installed as a local improvement, all or 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 Chapter 56 of Title 40 Editor's Note: See N.J.S.A. 40:56-1 et seq. of the statutes of the State of New Jersey, the applicant may be required to sign an agreement acknowledging and agreeing to this procedure.

(d) In addition, the Township Committee 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 improvement, as may be determined by the Township.

(4) If the Township Committee 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 Jackson, County of Ocean, 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 Committee 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 Committee 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 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 the 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.

G. Assessment not precluded. Nothing in this section of this chapter shall preclude the municipality from assessing any property benefiting from the installation of any off-tract improvements as provided in this section pursuant to the provisions of the Revised Statutes of New Jersey, an allowance being made to the respective parcels of realty for payments herein.