Guarantees shall be provided to ensure the City of the proper installation and maintenance of on-site and on-tract improvement. (Ord. No. O-01-46 § 32-9.1)

a. Prior to the granting of final approval of a subdivision or site plan, the applicant shall have installed or shall have furnished performance guarantees for the ultimate installation of the improvements that were required as a condition of preliminary approval and are shown on the final plat.

b. Improvements for which performance guarantees may be required include: streets, grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor's monuments, water mains, culverts, storm sewers, sanitary sewers, 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 provide a performance guarantee in favor of the City insuring the installation of such uncompleted improvements on or before an agreed upon date. The performance guarantee shall be deposited with the Planning or Zoning Board Secretary as the case may be, who shall note receipt thereof and file same with the City Clerk; provided that any guarantee or portion thereof in the form of cash or certified check shall be forwarded to the City Treasurer. The cost of installation of the required improvements shall be estimated by the City Engineer, and the amount of the performance guarantee shall be of an amount equal to one hundred twenty (120%) percent of this estimated cost. Ten (10%) percent of the performance guarantee shall be required to be in the form of cash or certified check.

d. The form and sufficiency of bond shall be subject to approval of the Corporation Counsel. Performance bonds shall be expressly conditioned upon the developer's full compliance governing the installation of improvements and utilities and faithful performance of the terms of agreement with the City.

e. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the City 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 not to exceed one hundred twenty (120%) percent of the cost of the installation as determined 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 City for the reasonable cost of the improvements not completed or corrected, and the City may either prior to or after the receipt of the proceeds thereof complete such improvements.

g. Upon substantial completion of all required appurtenant utility improvements, and the connection of same to the public system, the obligor may notify the City Council in writing, by certified mail addressed in care of the City Clerk of the completion or substantial completion of improvements and shall send a copy thereof to the City Engineer. Thereupon, the Engineer shall inspect all improvements of which such notice has been given and shall file a detailed report, in writing, with the City Council indicating either approval, partial approval or rejection. The cost of the improvements as approved or rejected shall be set forth.

h. The City Council shall either approve, partially approve or reject the improvements, on the basis of the report of the City Engineer and shall notify the obligor in writing, by certified mail, of the contents of said report and the action of said approving authority with relation thereto, not later than sixty-five (65) days after receipt of the notice from the obligor of the completion of the improvements. Where partial approval is granted, the obligor shall be released from all liability pursuant to its performance guarantee, except for that portion adequately sufficient to secure provision of the improvements not yet approved; provided that thirty (30%) percent of the amount of the performance guarantee posted may be retained to ensure completion of all improvements. Failure of the City Council to send or provide such notification to the obligor within sixty-five (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.

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

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

k. The developer/obligor shall be responsible for all reasonable inspection fees for the foregoing inspection of improvements and shall deposit all appropriate inspection escrows in accordance with subsection 33-9.4

l. 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.

(Ord. No. O-01-46 § 32-9.2; Ord. No. O-09-28 § 2)

a. Upon completion and approval of the required improvements or portions of improvements, the developer may be required to post a maintenance guarantee with the City 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.

b. The guarantee shall be in a form and sufficiency approved by the Corporation Counsel. The maintenance bond shall be posted upon final release of the performance bond by the City and shall be expressly conditioned upon the maintenance by the developer of all such improvements for a period of two (2) years, and particularly shall guarantee the remedy of any defects in such improvements 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 City for such utilities or improvements.

(Ord. No. O-01-46 § 32-9.3; Ord. No. O-09-28 § 2)

a. Prior to beginning construction, the developer shall arrange for a preconstruction conference between the developer, contractor and City Engineer. All improvements and utility installations shall be inspected during the time of their installation under the supervision of the City Engineer to ensure satisfactory completion. The City Engineer shall be notified by the developer five (5) business days in advance of the start of construction. All costs associated with said inspections shall be the responsibility of the developer. The developer shall reimburse the City for all reasonable inspection fees. Subsequent to the aforementioned preconstruction conference and prior to the commencement of construction, the developer will deliver to the City Clerk a deposit, which will be held in escrow and used for the purpose of paying all reasonable inspection fees. The deposit shall be submitted by certified check or a bank money order into a revolving account in an amount equal to five (5%) percent of the estimated cost of constructing the improvements or a fixed sum in the amount of twenty-five thousand ($25,000.00) dollars, whichever is the lesser amount. The developer shall replenish the account whenever the amount of the inspection account becomes less than fifty (50%) percent of the initial amount deposited. In the case of multiple projects performed simultaneously, a separate deposit is required for each individual project The estimate is to be prepared and submitted by the developer's engineer and approved by the City Engineer. The City may deduct monies from the escrowed funds as inspection fees need to be paid. In addition to the five (5%) percent amount held in escrow, the developer shall also be responsible for any extraordinary fees incurred by the City as the result of the retention of special consultants. Subsequent to the completion of all inspections, the remaining escrowed monies, if any, shall be refunded to the developer within thirty (30) days.

b. The inspection fees outlined in paragraph a. above, shall be in addition to any amounts payable by the developer for performance guarantees, maintenance guarantees, application fees and permit fees.

(Ord. No. O-01-46 § 32-9.4; Ord. No. O-10-05)

a. Purpose. The protection of the public interest may require the installation of improvements at locations apart from the property to be subdivided or for which site plan approval is sought, which shall be referred to as off-tract or off-site improvements, as defined in this chapter as applicable to on-site and on-tract improvements. In the event that the Approving Agency shall determine that the protection of the public interest requires the installation of an off-tract improvement, it shall refer the matter to the City Council, which shall determine whether the cost of said improvement shall be borne by the City or whether the developer shall be required to pay all or a portion of such cost. The developer's pro-rata share of the cost of any off-tract improvements shall be determined in accordance with this section.

b. Composition. Off-site or off-tract improvements shall include installation of new improvements and/or extensions and modifications of existing improvements.

c. Criteria for Consideration. Prior to referral of the matter to the City Council, the Approving Agency at the advice of the City Engineer shall consider the total cost of the off-tract improvements, the benefits conferred upon the applicant's proposed development, population and land use projections for the general area in which the improvements; the estimated timing of construction of off-tract improvements and the condition and period of usefulness, which periods may be based upon the criteria of N.J.S.A. 40A:2-22. The Approving Agency may further consider the criteria set forth below:

1. Road, curb, gutter and sidewalk improvements may be based upon the anticipated increase in pedestrian and vehicular traffic generated by the development. In determining such traffic increase, the Approving Agency may consider traffic counts, existing and projected traffic patterns, quality of roads and sidewalks in the area and other factors related to the needs created by the proposed development and existing and planned uses in the area, and the anticipated benefit thereto.

2. Drainage facilities may be based upon the proportion that the acreage of the proposed development bears to the acreage of the entire drainage basin, or in areas where substantial development by other persons has previously occurred along the natural and/or man-made drainage courses, in the alternative, they may be based on the amount of or density of present and future uses.

3. Sewage facilities may be based upon the proportion that the proposed development's total anticipated volume of sewage effluent bears to the existing or proposed capacity of existing and projected sewage disposal and transmission facilities, including but not limited to sewer mains and other appurtenances leading to and servicing the proposed development. The Approving Agency may also consider types of effluent and particular problems requiring special equipment or added costs of treatment and transmission.

4. Water facilities may be based upon the proportion of the proposed development's total anticipated volume of water use bears to the existing or proposed capacity of existing and projected water treatment and transmission facilities, including but not limited to water mains and other appurtenances leading to and servicing the proposed development.

d. Allocation of Cost.

1. The City Council shall make its determination and shall allocate the cost of such improvements as follows:

(a) In the event that the off-tract improvement shall benefit property in addition to the property being developed, and such improvement is to be constructed by the City as a general improvement, then the developer shall be required to provide, as a condition for approval of his proposed development, a bonded guaranty, a cash deposit or other security acceptable as to form and execution by the Corporation Counsel to insure payment to the City of an amount equal to the difference between the total estimated cost of the general improvement and the estimated total amount by which all properties to be serviced thereby, including the property of the developer being developed, will be specifically benefited by the improvement.

(b) In the event that the off-tract improvement will benefit property in addition to the property being developed, and such improvement is to be constructed by the City as a local improvement, then in addition to the amount referred to in paragraph d.1(a) above, the bonded guaranty, cash deposit or other security shall also insure payment to the City of the estimated amount by which the property being developed will be specifically benefited by the improvement.

(c) In the event that the off-tract improvement benefits only the property being developed, then the developer shall be required, as a condition for approval of his development application, to install and complete said improvements as part of his development plan in accordance with the requirements of this chapter generally applicable to on-site and on-tract improvements.

2. The cost estimates hereinabove referred to shall be made by the Approving Agency with the aid of the City Engineer and such other persons possessing pertinent information or expertise as may be designated by the Approving Agency.

3. Properties shall be deemed to be specifically benefited to the extent that the installation of the off-tract improvements increases the value of such properties for a lawful use to which they are or may be put, after deducting the amount the owners of such properties may reasonably be anticipated to expend to obtain the use of such improvement.

4. In the event that the developer's share of the cost of the off-tract improvement is to be calculated in accordance with either paragraph d.1(a) or d.1(b), above, and such improvement is to be constructed by the developer, then subsequent to the completion of the construction of such improvements, he shall be partially reimbursed for the cost of construction in accordance with the allocation of costs as set forth in paragraph d.1(a) or d.1(b), above, as applicable. Such improvements shall be completed prior to the granting of final approval where the public health, safety or welfare requires, unless the developer shall have provided performance and maintenance guarantees in accordance with the requirements of this chapter generally applicable to on-site or on-tract improvement.

5. As nearly as may be practicable, the Approving Agency shall endeavor to allocate the developer's cost of tract improvements at the time that preliminary approval is granted. Nothing contained herein, however, shall be deemed to prevent the Approving Agency from allocating the developer's cost of off-tract improvements at the time of final approval, as a condition of final approval.

e. Payment of Allocated Cost.

1. The estimated cost of the off-tract improvement allocated by the developer, if deposited in cash, shall be paid by the developer to the City Tax Collector, who shall provide a suitable depository therefore, and such funds shall be used only for the off-tract improvements serving the same purpose. If such improvements are not initiated by the City within a period of ten (10) years from the date of payment, then funds so deposited shall be returned together with accumulated interest or other income thereof, if any.

2. In the event the payment by the developer to the City Tax Collector provided for herein is less than its share of the actual cost of the off-tract improvements, then it shall be required to pay its additional share of the cost thereof.

3. In the event the payment by a developer to the City Tax Collector provided for above is more than its appropriate share for the actual cost of installation of the off-tract improvements, it shall be repaid an amount equal to the difference between the deposit and its share of the actual cost.

4. Before apportioning the cost of off-tract improvements to a developer, the Board shall notify and afford the developer an opportunity to be heard thereon at a public meeting. If the developer shall deem that any of the amounts so estimated by the Board are unreasonable, it may challenge them and seek to have them revised in appropriate proceedings brought to compel development application approval.

5. If the developer and the City cannot agree with respect to the developer's pro-rata share of the actual cost of the off-tract improvement, or if the determination made by the officer or Board charged with the duty of making assessments as to special benefits, if the off-tract improvements is constructed as a local improvement, the dispute shall be decided in an appropriate judicial proceeding.

f. Assessment of Properties. Upon receipt from the developer of its allocated share of the costs of the off-tract improvements, the City may adopt a local improvement assessment ordinance for the purpose of construction and installation of the off-tract improvements based upon the actual cost thereof. Any portion of the cost of the improvements not defrayed by a developer may be assessed against benefiting property owners by the City. Any assessments for benefits conferred made against the developer or its successors in interest shall be first offset by a pro-rata share credit of the allocated costs previously deposited with the City Tax Collector pertaining thereto. The developer, or his successors in interest, shall not be liable for any part of an assessment for such improvements unless the assessment exceeds its pro rata share credit for its deposit, and then only to the extent of the deficiency.

g. Installation of Improvements by Applicant. At the discretion and option of the City, the City may enter into a contract with the developer providing for the installation and construction of the off-tract improvements by the developer upon contribution by the City of the remaining unallocated portion of the cost of the off-tract improvement. The Contract shall provide for appropriate performance bond and proof of liability insurance.

h. Credit for Work Performed. In the event the developer installs and constructs an off-tract development or any portion thereof, which improvement is accepted by the City, then the cost shall be treated as a credit against any future assessment for that particular off-tract improvement, or portion thereof constructed by the City in the same manner as if the developer had deposited its apportioned cost with the City Tax Collector, as provided herein.

1. Report from Planning Board. If the Approving Agency considering the application for development is the Zoning Board of Adjustment, said Board may request a report from the Planning Board which report when received shall be forwarded to the City Council as part of the Zoning Board of Adjustment's report and recommendation to the City Council for off-tract improvements.

(Ord. No. O-01-46 § 32-9.5; Ord. No. O-09-28 § 2)