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 Planning Board a performance guarantee and inspection fee. An inspection fee amounting to five percent (5%) of the estimated construction cost of installing on-site and off-site improvements necessary to protect the public interest, shall be paid by the developer to cover the cost of supervision by the City Engineer.

a. The guarantee shall be sufficient in amount to equal the total cost to the City as estimated by the Developer's Engineer and approved by the Planning Board Engineer, of constructing those on-site, off-site and off-tract improvements necessary to protect adjacent property and the public interest in the event development of the subdivision or site were not completed. Such improvements shall include, but are not limited to grading; surveyor's monuments; drainage facilities necessary to protect off-tract areas from flooding; erosion and sedimentation control facilities; required landscaping, buffers, screening and fencing; all improvements within public rights-of-way and easements such as streets, curbs, gutters, culverts, storm sewers, sanitary sewers, water mains, sidewalks, street lighting, shade trees, and others as may be required.

b. Such guarantee 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 City Council and the Planning Board 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 City of constructing all improvements shall be based upon the estimated contract construction costs, which would prevail upon expiration of the guarantee 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 twenty percent (20%) of the estimated contract construction costs. (Performance guarantee equals one hundred twenty percent (120%) of the estimate approved by the Planning Board or City Engineer.)

d. Such performance guarantee 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 Planning Board Attorney, or any other type of surety acceptable to and approved by the Planning Board Attorney provided that at least ten percent (10%) of the performance guarantee shall be in the form of cash or certified check drawn on an insured banking institution in the State of New Jersey; provided, however, that all rights to said ten percent (10%) portion including the right to interest with dividends, be assigned to the City in a form of assignment acceptable to the Planning Board Attorney for a period of the bond and that the principal amount be returned to the developer upon completion of the bonded improvements together with two-thirds (2/3) of earned interest, or in the event of default, any interest and principal shall be used by and for the benefit of the City in the completion of said improvements. (Ord. #94-16, Appx. A)

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

All performance guarantees shall run to and be in favor of the City of Ocean City in the County of Cape May.

The performance guarantee shall be approved by the City Attorney as to form, sufficiency and execution and shall be subject to the following conditions:

a. Such performance guarantee shall run for a period to be fixed by the Planning Board, but in no case for a term longer than the period of final approval (normally two (2) years) set by N.J.S.A. 40:55D-1 et seq. and/or this Ordinance or for the installation of all or any portion of the improvements, whichever is shorter.

b. The time allowed for installation of improvements for which the performance guarantee has been provided may be extended by resolution of the Planning Board provided that, if required, the period of final approval has been extended by the Planning Board in accordance with N.J.S.A. 40:55D-1 et seq. and/or this Ordinance and, provided further that:

1. Such extension shall not exceed one (1) year, and

2. There shall not be more than three (3) such extensions, and

3. 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 percent (120%) of the cost of the installation of all uncompleted improvements as determined by the Planning Board as of the time of the passage of the resolution.

c. 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.

If, during the period of the performance guarantee, the developer fails to prosecute the work of completing the improvements so as not to create hazards to life, health, property or public safety, the City may, after five (5) days notice perform, or cause to be performed, any necessary corrective work and deduct the cost thereof from the ten percent (10%) cash or certified check portion of the guarantee. Upon notice of any such deduction, the developer shall, within ten (10) days, restore the full ten percent (10%) cash balance or his performance guarantee will be held to be void and the City may take action as if final plat approval had not been obtained.

Upon completion and/or substantial completion of all required improvements as defined in Section 25-1600.1.1a. above (except the final application of bituminous concrete [wearing surface], street shade trees, concrete monuments, and iron pins), and the connection of applicable improvements to the public system, the obligor may notify the Planning Board 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 Planning Board Engineer. The developer's or obligor's design professional shall prepare an "As-built Plan" of the subdivision and/or site plan, showing all on site and off-site or off tract improvements noting any deviations from the plans approved by the Planning Board. Thereupon the Planning Board Engineer and/or City Engineer shall inspect all improvements of which such notice has been given and shall file a detailed report, in writing, with the Planning Board, indicating either approval, partial approval or rejection of such improvements with a statement of reasons for any rejection. Should the Planning Board and/or City Engineer determine that the project "As-Built Plan" does not conform to the plans and specifications or conditions of approval imposed by the Board he shall make recommendations to the Board as required in Section 25-1600.6.3; Modification of Improvements. The cost of the improvements as approved or rejected shall be set forth by the Planning Board and or City Engineer. (Ord. #94-16, Appx. A)

The Planning Board shall either approve, partially approve, or reject the improvements, on the basis of the report of the Planning Board 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 provisions of the improvements not yet approved; provided that thirty percent (30%) of the amount of the performance guarantee posted may be retained to ensure completion of all improvements. Failure of the Planning Board 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.

If any portion of the required improvements are rejected, the Planning Board 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. Performance guaranty for the remaining improvements not yet approved thirty percent (30%) minimum shall be approved by the Planning Board Attorney as to form, sufficiency, and execution, and shall run for such additional period as it shall be deemed sufficient or until acceptance of public improvements by the City.

Should the Planning Board approve or partially approve the reduction request, the ten percent (10%) cash or certified portion of the performance guarantee provided by the obligor shall remain on deposit with the City until such time all improvements are complete and accepted by the municipality. The performance guarantee for the remaining improvements not yet approved (thirty percent (30%) minimum) plus the ten percent (10%) cash or certified portion of the performance guarantee provided by the obligor shall be deemed adequate to cover that partial reduction granted for which the obligor is released from liability pursuant to the performance guarantee.

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

The obligor shall reimburse the City for all reasonable inspection fees paid to the Planning Board Engineer for the foregoing inspection of improvements provided that the municipality may require of the developer, a deposit for all or a portion of the reasonably anticipated fees to be paid to the Planning Board Engineer for such inspection and, provided further, that such reasonably anticipated fees are hereby determined and set forth in Article 1300 of this Ordinance.

In the event that final approval is by stages or sections of development pursuant to the N.J.S.A. 40:55D-38, Subsection a., the provisions of this Section shall be applied by such stage or section.

No performance guarantees shall be presented for approval of the City until the officials listed below have performed the following and have made certification of their performance, in writing to the Planning Board.

a. Planning Board Engineer. The Planning Board Engineer shall:

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

2. Determine those acts or things the applicant is to do to protect the City, 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; also, advise the applicant of the amount required to pay the City as a proper inspection, testing and administration fee.

3. Certify that the performance and inspection fees comply with Sections 25-1600.1.c, 25-1300.17 and 25-1300.18 and are adequate to protect the interest of the City of Ocean City.

b. City Clerk. The City Clerk shall:

1. Ascertain that the plat of a site plan or subdivision has been approved by the Cape May County Planning Board and the City Planning Board or Board of Adjustment.

2. Determine if the landowner is an individual, corporation, or partnership; 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 location of its principal office in this State; if a partnership, the names and addresses of all partners.

3. Give the applicant a form of the surety company bond required by the City, and all figures, dates, and detail required by Section 25-1600.2.1a. above so the same may be included in the bond to be furnished to the City;

4. Deliver to the Planning Board Attorney:

(a) The original copy of the surety company bond of the applicant; and

(b) The Planning Board Engineer's written certificate.

5. If there is nothing the applicant needs to do under Section 25-1600.2.1a,2 above the certificate shall so state and give the reason therefor.

c. Planning Board Attorney. Upon receipt from the Planning Board of the surety bond and the Engineer's certificate, the Planning Board 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 Planning Board Attorney shall directly notify the applicant of its short-comings. When the bond is or has been made correct, the Planning Board Attorney shall make a written certificate to that effect to the Planning Board. Thereupon said Planning Board Attorney shall deliver the bond and Planning Board Engineer's and Planning Board Attorney's certificates to the City Clerk.

d. City Clerk. Upon the receipt from the Planning Board Attorney of the bond and certificates of the Planning Board Engineer and Planning Board Attorney, the City Clerk shall:

1. Collect from the applicant the proper fee or fees, if any, payable to the City in accordance with the Planning Board certificate.

2. Place the matter of approval of bond(s) on the agenda of the next regular meeting of the Planning Board for its consideration.

3. Submit the bond, certificate and fees to the Planning Board at the next regular meeting of said Planning Board. (Ord. #94-16, Appx. A)

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

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 (1) year before, showing its financial condition. 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.

The City Clerk and Planning Board Secretary shall keep a supply of copies of these bond requirements in his office for the use of applicants and the general public.

Where the Planning Board determines that off-tract improvements are necessary for the proper development and utilizing of the proposed site or subdivision and the surrounding area, it may require either (1) that such off-tract improvements be installed or (2) that the developer contribute to the installation of such off-tract improvements. Where the Planning Board has determined that off-tract improvements are required, it shall be a condition of the granting of final approval that such improvements be constructed or that the developer shall make payments toward the ultimate installation of off-tract improvements such as, but not limited to, streets, curbs and gutters, sidewalks, water mains, sanitary sewers, storm sewers and culverts, monuments and street lights, all in accordance with the specifications governing on-tract improvements.

If the Planning Board determines that the developer may contribute toward required off-tract improvements in lieu of such improvements being installed, the Planning Board shall allocate the cost of same off-tract improvements in accordance with the standards hereinafter set forth. The improvement of a stream and/or widening of, or the construction of drainage or other improvements in, a street or road fronting on the tract to be subdivided and/or developed shall not constitute an off-tract improvement and the cost of said improvement shall not be allocated.

a. The allocation of the cost of off-tract improvements shall be determined in accordance with the following:

1. The Planning Board may consider the total cost of the off-tract improvements, the benefits conferred upon the site or subdivision, the needs created by the site or subdivision, population and land use projects for the general areas of the site or subdivision and other areas to be served by the off-tract improvements, the estimated times of construction of off-tract improvements and the condition of periods of usefulness, which periods may be based upon the criteria of The Local Bond Law N.J.S.A. 40A:2-22. The Planning Board may further consider the criteria set forth below.

2. Road, curb, gutter, and sidewalk improvements may be based upon the anticipated increase of traffic generated by the site or subdivision. In determining such traffic increase, the Planning Board may consider traffic counts, existing and projected traffic patterns, quality of roads and sidewalks in the area, and other factors related to the need created by the site or subdivision and anticipated thereto.

3. Drainage facilities may be based upon the percentage relationship between the site or subdivision acreage and the acreage of the total drainage basins involved or upon calculations developing the percentage contribution that the storm runoff from a particular site or subdivision bears to the total design capacity of any improvement; the particular methods to be selected in each instance by the City Engineer.

b. All monies received by the City in accordance with the provisions of this Section shall be paid to the City Treasurer who shall provide for a suitable depository therefor. Such funds shall be used only for the improvements for which they are deposited or improvements serving the same purposes unless such improvements are not initiated for a period of five (5) years from the date of payment, after which time said funds shall be transferred to the capital improvement fund of the City.

c. The apportionment of costs shall be determined by the Planning Board. The developer shall be afforded an opportunity before said Board to present evidence relative thereto.

Nothing in this Section of the Ordinance shall preclude the City from assessing any real estate property benefiting from installation of any off-tract improvements as provided in this Section pursuant to the provisions of the N.J.S.A. 40:55D, an allowance being made to the respective parcels of realty for payments herein.

Before any developer effectively assigns any of his interest in any preliminary or final approval, he must notify the Planning Board and supply detailed information with regard to the name, address, principals, type of organization, competency, experience, and past performance of the assignee, transferee, or agent. Notice of such assignments or transfer shall be given no later than ten (l0) days after its effective date. The assignee must be made acquainted with all the conditions of approval and developer shall so certify.

The applicant shall notify the Planning Board and or City Engineer in writing at least five (5) days prior to the start of construction of on-site improvements and off-site or public improvements. (Ord. #94-16, Appx. A)

Following receipt of this notice, the Planning Board Engineer and/or City Engineer may, at their discretion, call for a pre-construction conference to review required on- and off-site inspection procedures with the applicant. Should the Planning Board Engineer and/or City Engineer determine that the scope of the project does not warrant a pre-construction meeting, the applicant shall be notified in writing of the inspection requirements. (Ord. #94-16, Appx. A)

Prior to signing of any final plat, issuance of a Development Permit or the start of construction of any improvements required by the provisions of this Ordinance, the developer shall deposit by cash or certified check with the City Clerk an amount determined from the schedule under Article 1300, of this Ordinance. Said amount shall be used to defray the cost of inspection, testing, engineering, administration, and other costs, and fees paid by the City in connection with the inspection and acceptance of the installation of the required improvements. All monies received on account of engineering and inspection fees shall be deposited by the City Treasurer in an appropriate account. The City shall arrange for the Planning Board Engineer, the appropriate municipal officials or other qualified persons to provide all necessary administrative and engineering services.

All required improvements except those utility improvements which are not the responsibility of the City shall be subject to inspection and approval by the Planning Board and/or City Engineer, who shall be notified by the developer at least five (5) days prior to the initial start of construction and again twenty-four (24) hours prior to the resumption of work after any idle period exceeding one (1) working day. All of the utility improvements shall be subject to inspection and approval by the owner or agency controlling the utility who shall be notified by the developer in accordance with the utilities' requirements. No underground installation shall be covered until it is inspected and approved by the owner of or agency controlling the utility.

The following additional inspections are required:

a. Prior to paving.

b. Prior to site work concrete pours, i.e. sidewalks, curbs, pavements, slabs and parking aprons.

c. Prior to back filling drainage and/or sanitary sewer lines.

d. Following installation of landscaping features including but not necessarily limited to trees, shrubs, ground cover, sod, mulch, fencing, pavers and border timbers.

e. Following completion of all site or subdivision improvements prior to the issuance of a permanent Certificate of Occupancy or substantial completion prior to the issuance of a temporary Certificate of Occupancy (subsection 25-1600.8.1 and 25-1600.8.2), the inspection shall include all elements of the approved Site and or Subdivision Plan and Engineer's estimate.

f. Prior to the release of the maintenance guarantee, the Planning Board and or City Engineer shall notify the Planning Board following final or substantial completion of improvements. The Zoning Officer shall receive a copy of this report. (Ord. #94-16, Appx. A)e

Any time, whether as a result of his inspection of work underway or otherwise, the Planning Board Engineer may recommend that the developer be required to modify the design and extent of the improvements required, notifying the Planning Board of his recommendations. The Planning Board shall, if it considers such modifications to be major, or if requested by the developer or Planning Board Engineer, take formal action to approve or disapprove such recommendations; provided, however, that it must first afford the developer an opportunity to be heard. If the Agency takes no formal action within thirty (30) days of such recommendations, or where the developer has not requested formal Planning Board action, its approval will be assumed. Similarly, the Planning Board may grant or deny the developer permission to effect such modification upon his application and the Planning Board Engineer's approval. In either event, where such modification is to be effected, the appropriate plat must be revised by the developer or his engineer to reflect such modification and sufficient copies thereof submitted to the Administrative Officer (Planning Board or Board of Adjustment Secretary) for distribution.

All improvements, except as otherwise provided, shall be subject to inspection and approval by the Planning Board Engineer. No underground installation shall be covered until inspection and approved by the Planning Board Engineer or those agencies having jurisdiction over the particular installation. If such installation is covered prior to inspection, it shall be uncovered or other inspection means used, such as a television or other pipeline camera as may be deemed necessary by the Planning Board Engineer, and charges for such work will be paid for by the developer.