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 public improvements and landscaping within two years of
such approval, and shall accept in accordance with the standards adopted
herein:
A.Â
The furnishing of a performance guaranty in favor
of the Township in an amount equal to 120% of the cost of installations
for improvements as estimated by the Township Engineer, 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 and other public on-site improvements.
Not less than 10 of the required guarantee shall be in cash.
B.Â
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.Â
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.Â
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.
E.Â
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.Â
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 45 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 45 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.Â
The performance guaranty may be released when:
(1)Â
The Township Committee has authorized acceptance
of improvements and in pursuant to N.J.S.A. 40:55D-53e. Bonds, if
any, shall be released first; cash shall be released last.
(2)Â
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. ______________
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.Â
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.Â
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.Â
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.Â
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.Â
Performance guaranties shall be approved by the Township
Attorney as to form, sufficiency and execution. A letter of credit
shall be an acceptable form of performance guaranty if it is in accord
with N.J.S.A. 40:55D-53.5, approved by the Township Committee and
satisfies the following conditions:
(1)Â
It is irrevocable for an initial period of at
least one year with automatic one year renewals unless the bank notifies
the Township in writing at least 90 days before the initial date of
expiration or each anniversary of such date that it will not be renewed;
(2)Â
If the letter of credit is not renewed:
(a)Â
The Township shall have the right to immediately
draw a draft on sight if the developer's performance is not satisfactory
as of that date, or to draw a draft 30 days after receipt of said
notice if, after notification by the municipality that the letter
of credit will not be renewed, the developer fails to submit a satisfactory
replacement performance guaranty; and
(b)Â
The developer agrees to cease and desist all
such work upon receipt of notification from the municipality that
the letter of credit will not be renewed until such time as a satisfactory
replacement performance guaranty is submitted; and
(3)Â
The developer shall execute any agreements required
by the Township Attorney confirming the conditions set forth herein
prior to the Township's acceptance of said letter of credit.
