§ 26-112. INSTALLATION OF IMPROVEMENTS OR GUARANTEES.

26-112.1 Performance Guarantees Required.

a.

Prior to the signing of final plats, the applicant shall have installed or shall have furnished performance guarantees for the ultimate installation of the improvements that were shown on the approved preliminary plan, required as a condition of preliminary approval, or, in the case of subdivisions and multi-family residential site plans, required by the provisions of the "Map Filing Law."

b.

Improvements for which performance guarantees may be required include without limitation: streets, grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor's monuments, water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements of open space, and, in the case of site plans only, landscaping and other on-site improvements.

c.

The applicant shall file with the Borough Clerk a performance guarantee in favor of the Borough of Sayreville insuring the installation of all uncompleted improvements. The cost of installation of the required improvements shall be estimated by the Borough Engineer pursuant to N.J.S.A. 40:55D-53, and the amount of the performance guarantee, in a letter of credit or bonds, shall be of an amount equal to one hundred twenty (120%) percent of this estimated cost. Ten (10%) percent of the performance guarantee must be in the form of cash.

d.

The form and sufficiency of the guarantee shall be subject to approval of the Borough Attorney. Performance guarantees shall be expressly conditioned upon the developer's full compliance with all Borough ordinances and regulations governing the installation of improvements and utilities and faithful performance of the terms of any developer's agreement with the Borough.

e.

The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council 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 equal to one hundred twenty (120%) percent of the cost of the installation as determined by the Borough Engineer pursuant to N.J.S.A. 40:55D-53 as of the time of the passage of the resolution.

f.

If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Borough for the reasonable cost of the improvements not completed or corrected, and the Borough may either prior to or after the 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."

g.

Upon substantial completion of all required street improvements (except the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may notify the Borough Council in writing, by certified mail addressed in care of the Borough Clerk, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the obligor shall send a copy of the request to the Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Borough engineer shall inspect all improvements covered by obligor's request and shall file a detailed list and report, in writing, with the Borough Council, and shall simultaneously send a copy thereof to the obligor not later than forty-five (45) days after receipt of the obligor's request.

The list prepared by the Borough Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Borough Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee.

h.

1.

The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough 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 guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee. This resolution shall be adopted not later than forty-five (45) days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough Council, the obligor shall be released from all liability pursuant to its performance guarantee, 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 thirty (30%) percent of the amount of the total performance guarantee 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 guarantee, the amount of the performance guarantee attributable to each approved improvement shall be reduced by the total amount of each such improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee, including any contingency factor applied to the cost of installation. If the sum of the approved improvements would exceed seventy (70%) percent of the total amount of the performance guarantee, then the Borough may retain thirty (30%) percent of the amount of the total performance guarantee to ensure completion and acceptability of all improvements, as provided above.

2.

If the Borough Engineer fails to send or provide the list and report as requested by the obligor pursuant to subsection g. of this section within forty-five (45) days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough Engineer to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

If the Borough Council fails to approve or reject the improvements determined by the Borough Engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within forty-five (45) days from the receipt of the Borough Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee; 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 Borough 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.

i.

If any portion of the required improvements are rejected, the Borough Council 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.

j.

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

k.

In the event that final approval is by stages or sections of development, the provisions of this section shall be applied by stage or section.

l.

To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough Council shall be deemed upon the release of any performance guarantee required, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivisions plats approved by the Board, provided that such improvements have been inspected and have received final approval by the Borough Engineer.

(Ord. #637-99)

26-112.2 Maintenance Guarantees.

a.

Upon completion and acceptance by the Borough Council of the required improvements or a portion of such improvements, the developer may be required to post a maintenance guarantee with the Borough Council for a period not to exceed two (2) years after final acceptance of the improvement, in an amount not to exceed fifteen (15%) percent of the cost of the improvement, as determined by the Borough Engineer pursuant to N.J.S.A. 40:55D-53.

b.

The form and sufficiency of the maintenance guarantee shall be approved by the Borough Attorney. The maintenance guarantee for an improvement shall be posted upon final release by the Borough Council of the performance guarantee for that improvement and shall be expressly conditioned upon the maintenance by the developer of such improvement for a period of two (2) years, and particularly shall guarantee the remedy of any defects in such improvement which occur during that period.

c.

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 Borough for such utilities or improvements.

d.

Appeal Procedure for Disputed Guarantee Amounts. The cost of the installation of improvements shall be estimated by the Borough Engineer based on documented construction costs for public improvements prevailing in the general area of the Borough. The developer may appeal the Borough Engineer's estimate to the county construction board of appeals.

e.

Performance Guarantee; Acceptance. The Borough Council shall accept a performance guarantee or maintenance guarantee which is an irrevocable letter of credit if it:

1.

Constitutes an unconditional payment obligation of the issuer running solely to the Borough for an express initial period of time in the amount determined pursuant to subsection a.;

2.

Is issued by a banking or savings institution authorized to do and doing business in this State;

3.

Is for a period of time at least one (1) year; and

4.

Permits the Borough to draw upon the letter of credit if the obligor fails to furnish another letter of credit which complies with the provisions of this section thirty (30) days or more in advance of the expiration date of the letter of credit or such longer period in advance thereof as is stated in the letter of credit.

(Ord. #637-99)

26-112.3 Developer's Agreement.

a.

The term "developer" shall include all redevelopers undertaking a project for improvement in the Borough in a designated redevelopment area. A developer or redeveloper shall enter into a developer's or redeveloper's agreement incorporating all of the terms and conditions of approval imposed by the Planning Board or other approving agency prior to commencing any aspect of an improvement project and prior to the issuance of any required permit, construction or otherwise. All final plat approvals shall be subject to the herein agreement between the developer or redeveloper and the Borough.

b.

The agreement shall be in a form approved by and satisfactory to the Borough Attorney and authorized by the governing body. The substance of the agreement shall be consistent with the laws of the State of New Jersey, the Borough of Sayreville's Revised Land Use Ordinances and the conditions and standards applicable to the proposed development. The agreement shall include a statement therein that the developer or redeveloper agrees that it will incorporate into all executed contracts with contractors and subcontractors in connection with any project or project improvement undertaken in the Borough, a statement affirming that all wages for all categories of workers shall conform to the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25 et seq. as amended. This requirement shall not apply to minor site plan or minor subdivision approvals. The agreement shall be in recordable form and shall be treated and deemed to be a covenant or restriction pertaining to the land which is being developed, and enforceable against the developer or redeveloper and all successors in interest.

c.

The agreement shall be signed by the Mayor, the Borough Clerk; the Planning Board Chairman and Secretary; the Zoning Board Chairman and Secretary, where applicable; and the developer.

d.

The agreement shall provide for a performance and maintenance guaranty to be posted by the developer in accordance with Article VII of this Chapter.

e.

The agreement may include but shall not be limited to the provisions relating to the following:

1.

Anticipated time schedule and the developer's assumption for himself or his assigns of responsibility for the construction, and information otherwise specifying the nature and extent of the developer's obligations;

2.

The disposition and acquisition of any lands required to be set aside for public, semipublic, open space, greenways purposes and outdoor recreation uses;

3.

The phasing, financing and extent of any required municipal off-tract traffic and sidewalk improvements;

4.

Public approvals and municipal and developer actions required to implement any public infrastructure improvements, such as public sewers, stormwater control and sidewalks;

5.

The developer's obligation to maintain the project and comply with site plan approval conditions dealing with signage, building exteriors, common areas, lighting, landscaping, drainage, security, security cameras, buffer areas and open spaces, trash removal and internal roadways;

6.

Any agreements relating to an environmentally sensitive area in the proposed development;

7.

Architectural design standards to ensure that the development will result in an aesthetically harmonious design;

8.

Consideration of whether the impact of the proposed development will result in budgetary increases to the Borough in order to provide any additional services and facilities that will be necessary to service the proposed development. If the impact of the proposed development will result in such budgetary increases, then the Borough may request a contribution from the developer so as to limit such budgetary increases and provide the additional services and facilities.

f.

The executed agreement shall be made part of all major subdivision and major site plan approvals.

g.

The original agreement shall be kept on file in the Borough Clerk's office and a copy shall be kept on file by the Planning Board.

(Ord. #839-03, § 1; Ord. #38-07, § 1)