Township of Manchester, NJ Performance and Maintenance Guarantees

Performance guarantees required. Before the 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-65, the applicant shall have installed, under the inspection of the Township Engineer, all improvements required unless the applicant has posted and the Township Council has accepted a performance guarantee providing for such installation. In addition to the performance guarantee, all required improvements as specified in Article IX shall be completed after 85% occupancy of the project has been reached as determined by the Township Engineer. No certificates of occupancy shall be issued for the remaining 15% until all required improvements are completed and deemed to be satisfactory to the Township Engineer. Should the 15% figure amount to less than one dwelling unit, a minimum of one dwelling unit shall apply. The amount of the guarantee shall be determined by the Township Engineer, not to exceed 120% of the estimated cost of constructing the improvement including: streets, curbs, grading, pavement, gutters, 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. The Township 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.

Posting of performance guarantee. Performance guarantees shall be submitted in accordance with the standardized form adopted by the New Jersey Department of Community Affairs pursuant to N.J.S.A. 40 55D-53a.

(1)

Ten percent of the performance guarantee must be posted in cash in accordance with N.J.S.A. 40:55D-53.3 or an irrevocable letter of credit in accordance with N.J.S.A. 40:55D-53.5.

(2)

The remaining 90% of the performance guarantee amount may be posted in cash, certified check, irrevocable letter of credit or surety bond in accordance with N.J.S.A. 40:55D-53.5 in the favor of the Township.

(3)

The Township Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Township 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 Township Engineer and appended to the performance guarantee pursuant to Subsection A above. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution by the Township 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.

(4)

For the purpose of releasing the obligor form 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 Township Engineer and appended to the performance guarantee pursuant to Subsection B(1) of this section, 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 Township may retain 30% of the amount of the total performance guarantee to ensure completion and acceptability of all improvements, as provided above.

(5)

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 Township Attorney.

(6)

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 Township 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 Township Engineer as of the time of the passage of the resolution.

(7)

All performance guarantees shall remain in effect until formally released by the Township Council by a resolution and receipt of an approved maintenance guarantee as required.

(8)

All guarantees, sureties, and lending institutions are subject to the approval of the Township Attorney and the Township Council.

Release of guarantees.

(1)

List of all uncompleted or unsatisfactorily completed improvements.

(a)

Upon substantial completion of 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 Township Council, in writing, by certified mail addressed in care of the Township Clerk, that the Township Engineer prepare, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to § 245-89 above, a list of all uncompleted or unsatisfactorily completed improvements. If such a request is made, the obligor shall send a copy of the request to the Township Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Concurrent with this request, the obligor shall forward a set of as-built plans for the following:

[1]

Roads (plans and profiles).

[2]

Surface and stormwater drainage (plans and profiles) for facilities in roads and easements.

[3]

Sanitary sewers, including individual lot connections and cleanouts (plans and profiles) for facilities in roads and easements.

[4]

Water mains, in roads and easements.

[5]

Septic system invert (plans and profiles reflecting its elevation and its relationship to the final grade) and setback requirements as outlined in N.J.A.C. 7:9A-4.3.

(b)

Thereupon the Township Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Township Council, and shall simultaneously send a copy thereof to the obligor not later than 45 days after the receipt of the obligor's request.

(2)

The list prepared by the Township Engineer shall state, in detail, with respect to each 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 Township 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 Township Engineer and appended to the performance guarantee pursuant to Subsection A above.

(3)

The Township Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Township 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 Township Engineer and appended to the performance guarantee pursuant to Subsection A above. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution by the Township 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 performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

(4)

If the Township Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection C(1) and (2)above within 45 days from the receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Township Engineer to provide the list and report within a stated period of time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party. If the Township Council fails to approve or reject the improvements determined by the Township 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 Township 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 Township Engineer and appended to the performance guarantee pursuant to Subsection A, and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(5)

In the event that the obligor has made a cash deposit with the Township or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this section 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.

(6)

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 above shall be followed.

Maintenance guarantees.

(1)

Any release of performance guarantees will be conditioned upon the provision of a maintenance guarantee to be posted with the Township Council, in an amount equal to 15% of the cost of the improvement, which cost shall be determined by the Township Engineer in accordance with N.J.S.A. 40:55D-53.4 and in a form approved by the Township Attorney. In the event that other governmental agencies or public utilities 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 Township for such utilities or improvements.

(2)

The maintenance guarantee shall be for a period of two years after acceptance of the improvement.

Inspections.

(1)

All site improvements shall be inspected during the time of their installation under the supervision of the Township Engineer. Prior to the start of construction of any improvements, the applicant shall deposit by cash or certified check with the Township Clerk the applicable inspection fee required in this section.

(2)

In no case shall installation of underground facilities or any paving work be conducted without permission from the Township Engineer.

(3)

The Township Engineer's office shall be notified two working days prior to commencement of each of the following phases of construction so that the Township Engineer or a qualified representative may be present to inspect the work:

(a)

Clearing and grading.

(b)

Road subgrade.

(c)

Curb and gutter forms.

(d)

Curbs and gutters.

(e)

Road paving.

(f)

Sidewalk and driveway apron forms.

(g)

Sidewalks and driveway aprons.

(h)

Drainage pipes and other drainage construction.

(i)

Street name signs and traffic signage and striping.

Monuments.

Sanitary sewers.

Water distribution.

Detention and/or retention basins.

(n)

Topsoil, seeding, planting, shade trees.

(o)

Driveways and parking lots.

(4)

Any improvement installed contrary to the plan or plat approval by the Township or Township design standards shall constitute just cause to void the municipal approval.

(5)

Any improvements installed without notice for inspection shall constitute just cause for:

(a)

The issuance of a stop-work order by the Township Engineer pending the resolution of any dispute.

(b)

Removal of the uninspected improvements.

(c)

The payment by the developer of any costs of material testing.

(d)

The restoration by the developer of improvements disturbed by any material testing.

(6)

Inspection by the Township of the installation of improvements and utilities shall not operate to subject the Township to liability for claims, suits or liability of any kind that may at any time arise because of defects or negligence during construction or at any time thereafter; it being recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the owners and his contractor, if any.

(7)

Inspection fees. The obligor shall reimburse the Township for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements; provided that the Township may require of the developer a deposit for the inspection fees.

(a)

The amount of money deposited by the applicant shall not exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of the improvements, which cost shall be determined by N.J.S.A. 40:55D-53.4. For those developments for which the inspection fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by the 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 Township Engineer for inspection, the developer shall deposit the remaining 50% of the inspection fees. For those developments for which the inspection fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited 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 Township Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees.

(b)

The Township Engineer shall not perform any inspection if sufficient funds to pay for these inspections are not on deposit.

(c)

Upon final acceptance or final approval of the improvements, any balance remaining for any deposit paid hereunder shall be returned to the applicant without any interest.

(d)

The foregoing deposits shall be a condition of preliminary approval where the developer intends to post performance guarantees and construct the improvements after final approval.

Developer's agreement. 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 Township Council if so required by the municipal agency. This agreement shall be of a form that is acceptable to the Township 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 Township can utilize the cash portions of the performance guarantees to immediately attend to items presenting a safety hazard.

Development by stages. 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 Article X shall be applied by stage or section.

Acceptance of streets and dedicated improvements. To the extent that any of the improvements have been dedicated to the Township on the subdivision plat or site plan, the Township Council shall be deemed, upon the release of any performance guarantee required pursuant to Subsection A 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 Township Engineer.