As a condition of final development approval, the reviewing
board shall require, for the purpose of assuring the installation
of all improvements required under such approval, that the applicant
furnish a performance guarantee in accordance with the following standards:
A. The performance guarantee must run in favor of the Township, and
be in an amount not to exceed 120%, rounded to the nearest dollar,
of the cost of installation of improvements to be dedicated to the
Township, and have not yet been installed, that the Township or reviewing
board may deem necessary or appropriate, including, but not limited
to, streets, pavement, gutters, curbs, sidewalks, streetlighting,
street trees, surveyor's monuments (as shown on the final map and
required by the Map Filing Law (N.J.S.A. 46:23-9.9), water mains, sanitary sewers, community septic systems,
drainage structures, public improvements of open space, any grading
necessitated by the preceding improvements, and within an approved
phase or section of a development, privately owned perimeter buffer
landscaping. At the developer's option, a separate performance guarantee
may be posted for the privately owned perimeter buffer landscaping.
B. In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a "temporary certificate of occupancy guarantee," in favor of the Township 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, lot, building or phase of development and which are not covered by an existing performance guarantee. Upon posting of a temporary certificate of occupancy guarantee, all sums remaining under a performance guarantee, required pursuant to Subsection
A of this section, which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. The scope and amount of the temporary certificate of occupancy guarantee shall be determined by the Zoning Officer, Municipal Engineer, or other municipal official designated by the Township Committee. The Township shall not hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy guarantee shall be released by the Zoning Officer, Municipal Engineer, or other municipal official designated the Township Committee upon the issuance of a permanent certificate of occupancy with regard to the development, unit, lot, building, or phase as to which the temporary certificate of occupancy relates.
C. Safety and stabilization guarantee.
(1) In addition to a performance guarantee required pursuant to Subsection
A of this section, a developer shall furnish to the Township a separate guarantee, referred to herein as a "safety and stabilization guarantee," in favor of the Township, to be available to the Township 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:
(a)
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
(b)
Work has not recommenced within 30 days following the provision
of written notice by the Township to the developer of the Township's
intent to claim payment under the guarantee. The Township shall not
provide notice of its intent to claim payment under a safety and stabilization
guarantee 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. The Township shall provide written notice to the developer
by certified mail or other form of delivery providing evidence of
receipt.
(2) The amount of a safety and stabilization guarantee for a development
with bonded improvements in an amount not exceeding $100,000 shall
be $5,000. The amount of a safety and stabilization guarantee 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 2.5% of bonded improvement
costs in excess of $100,000 up to $1,000,000, plus 1.0% of bonded
improvement costs in excess of $1,000,000.
D. No more than 10% of the total performance guarantees shall be in
cash, and the balance shall be in the form of a surety bond issued
by a bonding company licensed to do business in the State of New Jersey
and rated A+ or better by A.M. Best or a letter of credit issued by
a banking institution licensed to do business in the State of New
Jersey. Such bond or letter of credit must be approved and accepted
by the Township governing body. The Township Engineer shall review
the improvements required by the reviewing board which are to be bonded
and itemize their cost. This itemization shall be the basis for determining
the amount of the performance guarantees required by the Township
and the inspection fees required by this Code. The Township Engineer
shall forward his/her estimate of the cost of improvements to the
applicant within 30 days after the date of receipt of a request sent
by certified mail for this estimate. Any performance guarantee delivered
to the Township Clerk pursuant to this section shall be for an initial
term of not less than two years, shall provide for automatic one-year
renewals and shall only be terminable on the date of expiration, either
of the original period or any renewal period, upon not less than 60
days' advanced written notice. In the event that any of the improvements
to be installed are covered by a performance guarantee to another
governmental agency, no performance guarantee shall be required from
the Township for such improvements.
E. If, at any time during the period of time between acceptance of the
initial performance guarantee and the date of the Township Committee
formally releases such performance guarantee, the Township Committee
has reasonable cause to doubt the value, legality, enforceability
or effectiveness of such guarantee, all development activity for which
such guarantee was established shall be discontinued until such time
as a substitute guarantee, in form and substance equivalent to the
guarantee which was required to be in place at the time the status
of the original guarantee was questioned, shall be delivered to and
accepted by the Township Committee. By way of illustration and not
limitation, the following shall be instances of reasonable cause to
doubt the value, legality, enforceability or effectiveness of such
guarantees:
(1) The company issuing the bond shall cease to do business, declare
insolvency or bankruptcy or be forced into involuntary bankruptcy.
(2) The bank, savings and loan, credit union, mortgage banking company
or other banking or banking-like entity issuing a letter of credit
shall become insolvent, be taken over by any governmental or quasigovernmental
agency or company or otherwise cease to do business.
(3) The issuer of any performance guarantee shall serve on the Township
notice of termination or cancellation of such guarantee.
F. The amount of any performance guarantee may be reduced by the Township
Committee, by resolution, when portions of the improvements have been
certified by the Township Engineer to have been completed. The time
allowed for installation of the improvements for which the performance
guarantee has been provided may be extended by the Township Committee
by resolution. If the sum of the approved bonded improvements would
exceed 70% of the total amount of the performance guarantee, then
the Township may retain 30% of the amount of the total performance
guarantee to ensure completion and acceptability of bonded improvements,
as provided above, except that any amount of the performance guarantee
attributable to bonded improvements for which a temporary certificate
of occupancy guarantee has been posted shall be released from the
performance guarantee even if such release would reduce the amount
held by the Township below 30%.
G. If the required improvements are not completed or corrected in accordance
with the finally approved development plans and approvals, the obligor
and surety shall be liable thereon to the Township for the reasonable
cost of the improvements not completed or corrected, and the Township,
either prior to or after the receipt of the proceeds of the performance
guarantee, may complete such improvements.
H. When all of the required improvements have been completed, the obligor
shall notify the administrative officer, in writing, by certified
mail, with a copy to the Municipal Clerk, of the completion of such
improvements and shall send a copy thereof to the Township Engineer.
Upon receipt of this notice, the Township Engineer shall inspect all
of the improvements and shall file a detailed report, in writing,
with the Administrative Officer, indicating either approval, partial
approval or rejection of the improvements with a statement of reasons
for rejection. If partial approval is indicated, the cost of the improvements
rejected shall be set forth.
I. The Township Committee 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 the Township Engineer's report and the action of the Township Committee 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 guarantee except for that portion adequately sufficient to secure completion of the improvements not yet approved. Failure of the Township Committee 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, subject to the requirements of §
96-13 below, shall be released from all liability pursuant to such performance guarantee.
J. If any portion of the required improvements is rejected, the obligor
shall complete such improvements, and, upon completion, the same procedure
of notification as set forth in this section shall be followed.
K. The obligor shall reimburse the Township for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements, pursuant to §
96-15 below.
As a condition of final development approval, the reviewing board shall require the applicant to execute and deliver to the Township, along with the performance guarantee set forth in §
96-12, a developer's agreement in the form prepared by the reviewing board solicitor and approved by the Township Attorney. The time restrictions and conditions set forth in the developer's agreement shall be completed by the reviewing board engineer. All performance guarantees submitted with respect to any particular application shall reference such agreement by name, parties and date of execution. All applicants shall be given a copy of this code section and the then-current draft form of the developer's agreement with the application package. Any revisions to such agreement after the date of same is approved and accepted by the Township Committee shall be completed and approved by the reviewing board and then submitted to the Committee for approval and execution. The developer's agreement and any amendments thereto shall be recorded against the real property which is the subject of the application prior to the issuance of a zoning permit. Evidence in the form of a copy of the developer's agreement time stamped by the County Clerk shall be submitted to the Township Clerk. Upon completion of the improvements, release of the performance guarantee and submission and approval of the required maintenance guarantee, the Township shall execute a release of the developer's agreement, in recordable form. The preparation and recording of such release shall be borne by the applicant.