Before signing and recording of final subdivision
plats, or as a condition of final site plan approval or as a condition
to the issuance of a zoning permit pursuant to N.J.S.A. 40:55D-65d,
the applicant shall have installed under the inspection of the Borough
Engineer, all improvements required unless the applicant has posted
and the Borough Council has accepted a performance guarantee providing
for such installation and maintenance.
A. The performance guarantee shall be in favor of the
Borough in an amount not to exceed 120% of the cost of installation,
which cost shall be determined by the Borough Engineer according to
the method of calculation set forth in N.J.S.A. 40:55D-53.4, for which
the approving authority may deem necessary or appropriate, including
streets, grading, pavement, gutters, curbs, sidewalks, streetlighting,
shade trees, surveyors monuments, as shown on the final map and required
by the Map Filing Law, (N.J.S.A. 46:23-9.9 et seq.), 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 and, in the case of site plans only,
other on-site improvements and landscaping.
B. The Borough 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.
Performance guarantees shall be submitted in
the following form:
A. 10% of the performance guarantee must be posted in
cash.
B. The remaining 90% of the performance guarantee amount
may be posted in cash, certified check, irrevocable letter of credit
or surety bond in the favor of the Borough.
C. The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough 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 relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to §
94-7.1 above. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough Council, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved 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 posted may be retained to ensure completion and acceptability of all improvements.
D. For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to §
94-7.1, including any contingency factor applied to the cost of installation. If the sum of the approved improvements would exceed 70% of the total amount of the performance guarantee, then the Borough may retain 30% of the amount of the total performance guarantee to ensure completion and acceptability of all improvements, as provided above.
E. If the applicant elects to post a surety bond, it
shall be issued by an insurance or bonding company licensed to do
business in New Jersey and acceptable to the Borough Attorney.
F. All guarantees shall provide for construction of the
required improvements within two years of the date of their posting
or such other time as determined by the municipal agency. This time
period may be extended by the Borough Council, in the form of a resolution
granting such extension provided the municipal agency has, if necessary,
extended the period of protection pursuant to N.J.S.A. 40:55D-52a.
As a condition of this extension the guarantee amount shall be increased
or reduced, as the case may be, to an amount not to exceed 120% of
the cost of the installation determined by the Borough Engineer as
of the time of the passage of the resolution.
G. All performance guarantees shall remain in effect
until formally released by the Borough Council by a resolution and
receipt of an approved maintenance guarantee as required.
H. All guarantees, sureties, and lending institutions
are subject to the approval of the Borough Attorney and the Borough
Council.
Prior to the signing and recording of final
major subdivision plats and as a condition of final site plan approval
in the case of a site plan, the developer shall enter into an agreement
with the Borough Council if so required by the municipal agency. This
agreement shall be a form that is acceptable to the Borough Attorney
and one in which the developer agrees to abide by the terms and conditions
of approval, construct the required improvements in accordance with
the approved plans, agree to maintain the constructed improvements
including but not limited to, payment of streetlighting charges, snow
removal, maintenance of storm drainage, sewer and water facilities.
The developer also shall agree that in the event the improvements
are not maintained, the Borough can utilize the cash portions of the
performance guarantees to immediately attend to items presenting a
safety hazard.
In the event that final approval is by stages
or sections of the development pursuant to N.J.S.A. 40:55D-38, the
provisions of § 94-7 shall be applied by stage or section.
To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guarantee required pursuant to §
94-7.3 above, 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 Borough Engineer.