A.
The purpose of this article is to establish the authority and procedures
for requiring, accepting and enforcing performance guarantees, in
order to assure that development and construction projects are completed
and maintained in accordance with Township standards, requirements
and approved conditions.
B.
A "performance guarantee," for purposes of this chapter, shall mean
a form of financial security posted to secure the timely performance
of obligations under this chapter. Performance guarantees may be in
the form of cash, certified check, irrevocable unconditional bank
letter of credit (so long as the terms and conditions of such letter
of credit are acceptable to the Code Official), or other similar instrument
acceptable to the Code Official at his discretion.
[Amended 4-15-2010]
C.
An "applicant," for purposes of this chapter, shall mean the person
or entity that has a legal or equitable right to develop or improve
the real property subject to a building permit for which a performance
guarantee must be provided. Only the applicant may post a performance
guarantee. If such real property is transferred, conveyed or sold
(other than as an individual, single-family lot or unit), the successor
(with legal proof of ownership) shall replace any outstanding performance
guarantees at the time of purchase. If the successor does not replace
all performance guarantees, then the applicant shall continue to be
responsible under such performance guarantees for completing the improvements
in accordance with their terms.
[Amended 4-15-2010]
Any applicant for a building permit shall, in the discretion
of the Code Official, be requested to deposit a performance guarantee
sufficient to guarantee the following:
A.
The establishment or reestablishment of ditches and culverts to properly
drain the building area covered by the site plan and the reopening
or reestablishment of any drainageways that may have been interrupted
by the building construction.
B.
The repair, replacement and reconstruction of any public road surfaces
damaged in the course of construction so that the same shall be in
comparable status as they existed prior to the commencement of building
construction.
C.
The repair of all public utility structures damaged during the course
of construction and the restoration and adjustment of all manholes,
catch basins, grate wells, hydrants and shutoff boxes to the same
conditions that they were in prior to the commencement of building
construction.
D.
The establishment of grades on the site pursuant to plans approved
by the Township.
E.
The completion of all work necessary to obtain a final certificate
of occupancy for any building for which a building permit has been
issued.
F.
The full and complete compliance with all of the provisions of this
chapter and other chapters of the Township Code.
[Amended 4-15-2010]
A.
The Code Official is authorized to require all applicants constructing
improvements under any permits and approvals granted pursuant to the
Building Code and this chapter to post a performance guarantee with
the Township to guarantee the completion of all required building
and site improvements and restoration activities in accordance with
this chapter.
B.
Notwithstanding any provision of this chapter with regard to the
issuance of permits for specific improvements, performance guarantees
shall require actual construction and installation of all required
improvements within either two years after the issuance of the initial
permit and the posting of the necessary performance guarantee or within
the time period determined by the Code Official for a temporary certificate
of occupancy, whichever is shorter or occurs first. The time limit
may be extended for up to six months at the discretion of the Code
Official upon determination that work is proceeding toward completion
and that the delay is not dilatory or unreasonable under all the circumstances.
In reaching this determination, the Code Official shall take into
consideration weather conditions and delays in securing required approvals/permits
from a schedule for completion of all remaining work. At the time
an extension is requested, a site inspection will be conducted, with
the cost of such inspection being the direct responsibility of the
applicant, to confirm work remaining on the site.
[Amended 4-15-2010]
A.
The performance guarantee required for site maintenance, public infrastructure, grading or other construction activity as set forth in § 58-20 shall be submitted at the time of issuance of the permit authorizing the activity or project. The exact amount of the performance guarantee shall be determined by the Code Official, with any necessary input from the builder or developer and the Township Engineer, Planner and Landscape Architect or other professional.
B.
The performance guarantee for incomplete work shall be submitted
at the time of issuance of the temporary certificate of occupancy.
The amount of the performance guarantee for incomplete work shall
not be less than 120% of the estimated remaining cost to complete
the building and site improvements. The exact amount of the performance
guarantee shall be determined by the Code Official, with any necessary
input from the builder or developer and the Township Engineer, Planner
and Landscape Architect or other professional.
C.
When no temporary or final certificate of occupancy has been issued
for more than two years after a building permit has been issued, then
such building permit shall not be extended or renewed unless, prior
to extending or renewing the building permit, the applicant shall
furnish a performance guarantee in the amount of 100% of the estimated
remaining cost to complete the remaining building and site improvements,
as determined by the Code Official.
[Amended 4-15-2010]
[Amended 4-15-2010]
The performance guarantee shall be returned to the applicant
when all fees that are due have been paid; inspection of the building
and site improvements for which the performance guarantee was provided
have been performed; and the Code Official has determined that the
conditions and requirements of the permit/approval for which the performance
guarantee is to secure have been met and final approval of same has
been granted. There shall be no interest paid to the applicant for
any performance guarantee. The performance guarantee may be returned
by sending the same by first-class mail to the applicant at the address
set forth in the application for the building permit. In the event
that said mailing is returned undelivered, all such funds shall be
held by the Township and returned to the applicant on demand. If no
such demand is made within one year after the issuance of the certificate
of occupancy, any such funds so held shall be forever forfeited.
[Amended 4-15-2010]
A.
If the applicant fails to timely complete all improvements and/or timely take the required action for which the performance guarantee was required within 30 days after written notice to the applicant, the applicant shall be deemed to be in "default." Unless a shorter period has been specified in a permit or approval issued, or elsewhere in this chapter, "timely" completion of the improvements shall mean not longer than two years from the date of issuance of the initial permit for improvements, unless such time is extended by the Code Official in accordance with § 58-21.
B.
In the event of a default, the performance guarantee shall be deposited in the general fund of the Township, and upon written notice to the applicant (which may be given within the notice provided for under Subsection A above), the Township shall have the right (but not the obligation) to use the performance guarantee deposited to complete the improvements or take the appropriate actions to achieve completion, and the application for the permit or approval shall be deemed to have authorized the right of the Township to enter upon the property to bring about such completion. Written notice to the applicant given under § 58-24 may be provided by one or more of the following methods: regular first-class mail or overnight delivery to the address on the application for permit/approval, delivery of the notice to the applicant at such address, personal delivery to the applicant, or posting on the property. Such notice shall be deemed given two business days if delivered by first-class mail, the next business day if delivered by overnight courier for next-day delivery, upon personal delivery to the applicant, or three days after posting on the property.
C.
In the event the performance guarantee posted is insufficient in
amount to allow the Township to complete the improvements and/or actions,
the applicant shall be required to pay to the Township such additional
costs as are needed for the completion of such improvements and/or
actions. Should the Township use the performance guarantee, or a portion
thereof, to achieve such completion, any amounts remaining shall first
be applied to the Township's administrative costs, which shall be
equal to 20% of the cost of such completion, and to payment of actual
attorneys' fees, consultant fees, and completing the improvements
and/or actions; the balance remaining thereafter, if any, shall be
refunded to the applicant. The Township may contract with a third
party to complete work required pursuant to this chapter.
D.
The applicant shall be responsible for ensuring that the required
performance guarantees remain in place until all site improvements
are complete and the performance guarantees have been released by
the Township. The applicant shall not permit a performance guarantee
to lapse or expire without renewal or replacement. The Code Official
may call or collect upon any such performance guarantee prior to its
expiration if it reasonably appears to the Code Official that the
performance guarantee will be permitted to lapse or expire.
