[Amended 2-9-2005 by Ord. No. 0-05-03; 11-9-2005 by Ord. No.
0-05-12]
Before recording final subdivision plats or
as a condition of final site plan approval, the Planning/Zoning Board
shall require, for the purpose of assuring the installation and maintenance
of on-tract and off-tract public improvements and landscaping within
two years of such approval, and shall accept in accordance with the
standards adopted herein:
A.
The furnishing of a performance guaranty in favor
of the Township in an amount equal to 120% of the cost of installation,
which cost shall be determined by the Township Engineer according
to the method of calculation set forth in N.J.S.A. 40:55D-53 for improvements
which the approving authority may deem appropriate or necessary, including:
streets, grading, pavement, gutters, curbs, sidewalks, streetlighting,
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, landscaping, recreation improvements and other on-tract
and off-tract improvements and landscaping. Not less than 10% of the
required guaranty shall be in cash. An itemized cost estimate of the
improvements covered by the performance guaranty shall be appended
to each performance guaranty posted by the obligor. All interest on
said funds shall inure to the benefit of the Township and the developer
in accordance with N.J.S.A. 40:55D-53.1.
B.
The furnishing of a maintenance guaranty to be posted
with the governing body for a period not to exceed two years after
final acceptance of the improvement, in an amount equal to 15% of
the cost of the improvement. 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 guaranty to another governmental agency, no performance
or maintenance guaranty, as the case may be, shall be required by
the Township for such utilities or improvements.
C.
The time allowed for installation of the improvements
for which the performance guaranty 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 guaranty shall be increased
or reduced, as the case may be, to an amount not to exceed 120% of
the cost of the installation as determined as of the time of the passage
of the resolution.
D.
If the required improvements are not completed or
corrected in accordance with the performance guaranty, the obligor
and surety, if any, shall be liable thereon to the Township for the
reasonable cost of the improvements not completed or corrected and
the Township may either prior to or after the receipt of the proceeds
thereof complete such improvements. Such completion or correction
of improvement shall not be subject to the public bidding requirements
of the Local Public Contracts Law (N.J.S.A. 40A:11-1 et seq.) as long
as no public moneys are expended for the completion or correction.
E.
Upon substantial completion of all required appurtenant
utility improvements, and the connection of same to the public system,
the obligor may notify the governing body in writing, by certified
mail addressed in care of the Municipal Clerk of the completion or
substantial completion of improvements and shall send a copy thereof
to the Township Engineer. Thereupon the Township Engineer shall inspect
all improvements of which such notice has been given and shall file
a detailed report, in writing, with the governing body, indicating
either approval, partial approval or rejection of such improvements
with a statement of reasons for any rejection. The cost of the improvements
as approved or rejected shall be set forth.
F.
The governing body shall either approve, partially
approve or reject the improvements on the basis of the report of the
Township 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 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 the performance guaranty, except for that
portion adequately sufficient to secure provision of the improvements
not yet approved, provided that 30% of the amount of the performance
guaranty posted may be retained to ensure completion of all improvements.
Failure of the governing body to send or provide such notification
to the obligor within 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 guaranty for such
improvements.
G.
The performance guaranty may be released when:
(1)
The Township Committee has authorized acceptance
of improvements. Bonds, if any, shall be released first; cash shall
be released last.
(2)
The Township Engineer has issued a certification
in the following form:
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"I hereby certify that all of the improvements
required to be installed by ______________________ in subdivision
(site plan) known as______________ which are covered by a performance
bond issued by __________________ Bond No. ___________ in and/or by
cash escrow in the amount of $________________ have been installed
in accordance with specifications of the Township of South Harrison
and to my satisfaction."
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H.
If any portion of the required improvements are rejected,
the approving authority 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 governing body or the Township Engineer.
J.
The obligor shall reimburse the municipality for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements, as provided in § 90-4.37 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 Township Engineer for such inspection.
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. Similarly, if a developer should opt to delay acceptance
of private road improvements by either a homeowners' association or
the governing body, then the release of any performance guaranties
shall be as provided for in this section. Maintenance responsibility
shall remain with the developer, to be governed by any conditions
of final approval of a development application. Upon acceptance of
the improvements by a homeowners' association or the governing body,
a maintenance guaranty as outlined herein shall be required.
L.
Performance and maintenance guaranties shall be approved
by the Township Attorney as to form, sufficiency and execution. No
surety bond shall be approved as a performance or maintenance guaranty
unless it is issued by a surety company that satisfies the following
requirements:
[Amended 12-10-1997 by Ord. No. 0-11-97]
(1)
The surety company must be authorized to transact
surety business in New Jersey pursuant to N.J.S.A. 17:17-10 or 17:32-1
et seq., as applicable;
(2)
The surety company shall be listed in the United
States Treasur Department Circular 570 as an acceptable surety on
federal bonds, or, ihe alternative (no matter what the amount of the
bond) be listed by the New Jersey Department of Banking and Insurance
pursuant to P.L. 1995, c.384 (N.J.S.A. 2A:44-143 and 2A:44-144) and
N.J.A.C. 11:1-41.4 as a surety company listed as acceptable to provide
payment or performance bonds as required by P.L. 1995, c.384.
(3)
The surety company must have a New Jersey agent
on whom service can be made.
(4)
Cash may be accepted as a performance or maintenance
guaranty. An irrevocable letter of credit shall be accepted as a performance
or maintenance guaranty if it:
(a)
Constitutes an unconditional payment obligation
of the issuer running solely to the municipality for an express initial
period of time in the amount determined pursuant to Section 41 of
P.L. 1975, c.291 (N.J.S.A. 40:55D-53);
(b)
Is issued by a banking or savings institution
authorized to do and doing business in this state;
(c)
Is for a period of time of at least one year;
and
(d)
Permits the municipality 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 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.
