Sponsored by:
Senator JEFF VAN DREW
District 1 (Atlantic, Cape May and Cumberland)
SYNOPSIS
Modifies performance and maintenance guarantee requirements under "Municipal Land Use Law.”
CURRENT VERSION OF TEXT
As introduced.
An Act concerning performance and maintenance guarantees under the "Municipal Land Use Law" and amending P.L.1975, c.291.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 41 of P.L.1975, c.291 (C.40:55D-53) is amended to read as follows:
41. Guarantees required; surety; release. a. Before [recording] filing of final subdivision plats or recording of minor subdivision deeds or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to subsection d. of section 52 of P.L.1975, c.291 (C.40:55D-65), the [approving authority] municipality may require and shall accept in accordance with the standards adopted by ordinance and regulations adopted pursuant to section 1 of P.L.1999, c.68 (C.40:55D-53a) for the purpose of assuring the installation and maintenance of certain on-tract improvements, the furnishing of a performance guarantee, and provision for a maintenance guarantee in accordance with paragraphs (1) and (2) of this subsection. If a municipality has adopted an ordinance requiring a successor developer to furnish a replacement performance guarantee, as a condition to the approval of a permit update under the State Uniform Construction Code, for the purpose of updating the name and address of the owner of property on a construction permit, the governing body may require and shall accept in accordance with the standards adopted by ordinance and regulations adopted pursuant to section 1 of P.L.1999, c.68 (C.40:55D-53a) for the purpose of assuring the installation and maintenance of certain on-tract improvements, the furnishing of a performance guarantee, and provision for a maintenance guarantee, in accordance with paragraphs (1) and (2) of this subsection.
(1) (a) [The furnishing of] If required, the developer shall furnish a performance guarantee in favor of the municipality in an amount not to exceed 120% of the cost of installation of only those improvements required by an approval or developer’s agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed, which cost shall be determined by the municipal engineer, according to the method of calculation set forth in section 15 of P.L.1991, c.256 (C.40:55D-53.4), for the following improvements [which the approving authority may deem necessary or appropriate including] as shown on the approved plans or plat: streets, [grading,] pavement, gutters, curbs, sidewalks, street lighting, [shade] street trees, surveyor's monuments, as shown on
the final map and required by "the map filing law," P.L.1960, c.141 (C.46:23-9.9 et seq.; repealed by section 2 of P.L.2011, c.217) or N.J.S.46:26B-1 through N.J.S.46:26B-8, water mains, [culverts, storm sewers,] sanitary sewers [or other means of sewage disposal], community septic systems, drainage structures, [erosion control and sedimentation control devices,] public improvements of open space, and [, in the case of site plans only, other on-site improvements and landscaping] any grading necessitated by the preceding improvements.
The municipal engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.
(b) A municipality may also require a performance guarantee to include, within an approved phase or section of a development privately-owned perimeter buffer landscaping, as required by local ordinance or imposed as a condition of approval.
At the developer’s option, a separate performance guarantee may be posted for the privately-owned perimeter buffer landscaping.
(c) In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, building, or phase of development, as a condition of the issuance thereof, the developer shall, if required by an ordinance adopted by the municipality, furnish a separate guarantee, referred to herein as a “temporary certificate of occupancy bond,” in favor of the municipality in an amount equal to 120% of the cost of installation of only those improvements or items which remain to be completed or installed under the terms of the temporary certificate of occupancy and which are required to be installed or completed as a condition precedent to the issuance of the permanent certificate of occupancy for the development, unit, building or phase of development. Upon posting of a “temporary certificate of occupancy bond,” all sums remaining under a performance guarantee, required pursuant to subparagraph (a) of this paragraph, which relate to the development, unit, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. At no time may a municipality hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy bond shall be released upon the issuance of a permanent certificate of occupancy with regard to the development, unit, building, or phase as to which the temporary certificate of occupancy relates.
(d) In addition to a performance guarantee required pursuant to subparagraph (a) of this paragraph, a developer shall, if required by an ordinance adopted by the municipality, furnish to the municipality a separate guarantee, referred to herein as a “safety and stabilization bond,” in favor of the municipality, to be available to the municipality solely for the purpose of returning property that has been disturbed to a safe and stable condition or otherwise implementing measures to protect the public from access to an unsafe or unstable condition, only in the circumstance that:
(i) site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure, and
(ii) work has not recommenced within 30 days following the provision of written notice by the municipality to the developer of the municipality’s intent to claim payment under the bond. A municipality shall not provide notice of its intent to claim payment under a “safety and stabilization bond” until a period of at least 60 days has elapsed during which all work on the development has ceased for reasons other than force majeure. A municipality shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.
The amount of a “safety and stabilization bond” for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000.
The amount of a “safety and stabilization bond” for a development with bonded improvements exceeding $100,000 shall be calculated as a percentage of the bonded improvement costs of the development or phase of development as follows:
$5,000 for the first $100,000 of bonded improvement costs, plus
two and a half percent of bonded improvement costs in excess of $100,000 up to $1,000,000, plus
one percent of bonded improvement costs in excess of $1,000,000.
(2) [Provision for] (a) If required, the developer shall post with the municipality, prior to the release of a performance guarantee required pursuant to subparagraph (a), subparagraph (b), or both subparagraph (a) and subparagraph (b) of paragraph (1) of this subsection, a maintenance guarantee [to be posted with the governing body for a period not to exceed two years after final acceptance of the improvement] in an amount not to exceed 15% of the cost of the [improvement] installation of the improvements which are being released.
(b) If required, the developer shall post with the municipality, upon the inspection and issuance of final approval of the following private site improvements by the municipal engineer, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the out-flow pipes and structures of the stormwater management system, if any, which cost shall be determined [by the municipal engineer] according to the method of calculation set forth in section 15 of P.L.1991, c.256 (C.40:55D-53.4).
(c) The term of the maintenance guarantee shall be for a period not to exceed two years and shall automatically expire at the end of the established term.
(3) 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 municipality for such utilities or improvements.
b. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the governing body by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the municipal engineer according to the method of calculation set forth in section 15 of P.L.1991, c.256 (C.40:55D-53.4) as of the time of the passage of the resolution.
c. If the required bonded improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the municipality for the reasonable cost of the improvements not completed or corrected and the municipality 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," P.L.1971, c.198 (C.40A:11-1 et seq.).
d. (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 guarantee pursuant to subsection a. of this section, 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 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 bonded 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 bonded 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 guarantee relating to the completed and satisfactory 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.
e. (1) The governing body, by resolution, shall either approve the bonded 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 guarantee and the “safety and stabilization bond” relating to the improvements accepted, 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. 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 guarantee and “safety and stabilization bond,” with respect to those approved bonded 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 guarantee and “safety and stabilization bond” 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 and “safety and stabilization bond,” the amount of the performance guarantee and “safety and stabilization bond” attributable to each approved bonded 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 bonded improvements would exceed 70 percent of the total amount of the performance guarantee, then the municipality may retain 30 percent of the amount of the total performance guarantee and “safety and stabilization bond” to ensure completion and acceptability of all improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a “temporary certificate of occupancy bond” has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the municipality below 30 percent.
(2) If the municipal engineer fails to send or provide the list and report as requested by the obligor pursuant to subsection d. 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 guarantee 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 guarantee 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 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.
f. If any portion of the required improvements is rejected, the approving authority 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.
g. Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the municipal engineer.
h. (1) The obligor shall reimburse the municipality for [all] reasonable inspection fees paid to the municipal engineer for the foregoing inspection of improvements; [provided that the] which fees shall not exceed the sum of the amounts set forth in subparagraphs (a) and (b) of this paragraph. The municipality may require [of] the developer [a deposit for] to post the inspection fees in escrow in an amount:
(a) not to exceed [, except for extraordinary circumstances, the greater of $500 or] 5% of the cost of bonded improvements that are subject to a performance guarantee under subparagraph (a), subparagraph (b), or both subparagraph (a) and subparagraph (b) of paragraph (1) of subsection a. of this section; and
(b) not to exceed 5% of the cost of private site improvements that are not subject to a performance guarantee under subparagraph (a) of paragraph (1) of subsection a. of this section, which cost shall be determined pursuant to section 15 of P.L.1991, c.256 (C.40:55D-53.4).
(2) For those developments for which the inspection fees [are] total less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited in escrow by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the municipal engineer for [inspection] inspections, the developer shall deposit the remaining 50% of the inspection fees.
(3) For those developments for which the inspection fees [are] total $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited in escrow by a developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the municipal engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees. [The municipal engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.]
(4) If the municipality determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to subparagraphs (a) and (b) of paragraph (1) of this subsection, is insufficient to cover the cost of additional required inspections, the municipality may require the developer to deposit additional funds in escrow provided that the municipality delivers to the developer a written inspection escrow deposit request, signed by the municipal engineer, which: informs the developer of the need for additional inspections, details the items or undertakings that require inspection, estimates the time required for those inspections, and estimates the cost of performing those inspections.
i. In the event that final approval is by stages or sections of development pursuant to subsection a. of section 29 of P.L.1975, c.291 (C.40:55D-38), the provisions of this section shall be applied by stage or section.
j. To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to subsection a. of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the municipal engineer.
(cf: P.L.2013, c.123, s.3)
2. This act shall take effect immediately.
STATEMENT
This bill would modify the requirements for furnishing performance and maintenance guarantees under the “Municipal Land Use Law.” Performance and maintenance guarantees ensure that improvements required to be made by a developer under a development approval are completed and maintained.
Under current law, a municipality may require a developer to post performance guarantees to ensure that certain types of improvements are completed. This may include improvements that are not being dedicated to a public entity. Under the bill, a municipality would only be able to require developers to post performance guarantees that cover improvements being dedicated to a public entity.
The one exception to this is that a municipality may require a performance guarantee for privately-owned perimeter buffer landscaping. The bill allows a developer to opt to post a separate performance guarantee for this item.
In addition, the bill eliminates the following types of improvements from the list of improvements that may be subject to a performance guarantee requirement under current law: culverts, storm sewers, erosion control and sedimentation control devices, other on-site improvements, and landscaping. The bill also modifies the description of some of the types of improvements that may currently be subject to a performance guarantee requirement.
The bill authorizes municipalities to require two additional types of guarantees: a “temporary certificate of occupancy bond,” and a “safety and stabilization bond.”
Under the bill, if a developer seeks a temporary certificate of occupancy for a development, unit, building, or phase of development, a municipality may require the developer to furnish a “temporary certificate of occupancy bond” in favor of the municipality in an amount equal to 120% of the cost of installation of improvements which remain to be completed and which are required to be completed prior to the issuance of the permanent certificate of occupancy. Upon posting a “temporary certificate of occupancy bond,” all sums remaining under a performance guarantee would be released because the new bond would adequately ensure completion of the improvements.
The bill would authorize a municipality to require a developer to furnish a “safety and stabilization bond,” which would provide the municipality a source of funding to return property to a safe and stable condition or to implement measures to protect the public from access to an unsafe or unstable condition. A municipality could claim payment under this bond if a developer ceases all work on the development for at least 60 consecutive days and does not recommence work within 30 days after the municipality notifies the developer of the municipality’s intent to claim payment under the bond. The bill specifies the manner of calculating the amount of a “safety and stabilization bond.”
The bill also modifies provisions of law that control the posting of maintenance guarantees. Under current law, a municipality may require a developer to provide a maintenance guarantee for a period of two years after the completion and acceptance of an improvement in an amount not to exceed 15% of the cost of the improvement. Under the bill, a municipality may require a developer to provide a maintenance guarantee for: improvements that were the subject of a performance guarantee, and specific private stormwater management specific improvements.
The bill changes the current requirements concerning a developer’s responsibility to pay fees to cover the municipal engineer’s inspection of improvements completed by the developer. Under the bill, a developer will be required to reimburse a municipality for reasonable inspection fees paid to the municipal engineer for the inspection of improvements. A municipality may require a developer to post in escrow for this purpose an amount not to exceed 5% of the cost of: bonded improvements that are subject to a performance guarantee, and private site improvements that are not subject to a performance guarantee.
The bill also deletes from current law a provision that prohibits a municipal engineer from performing an inspection if there are insufficient funds to pay for those inspections. The bill authorizes a municipality that determines there are insufficient funds in escrow to cover the cost of additional required inspections to require the developer to deposit additional funds in escrow provided that the municipality delivers to the developer a written inspection escrow deposit request, specifying details about the additional required inspections.