A.Â
Performance guaranties shall be required to be posted prior to the granting of final development approval, and maintenance guaranties shall be required to be posted prior to release of performance guaranties in connection with on-tract improvements as specified elsewhere in this chapter and in accordance with the provisions of this article. Requirements for performance and maintenance guaranties specific to resource extraction operations are contained in §§ 115-61A and B and 115-116C(7).
B.Â
In the event that other governmental agencies or public utilities
will install the required improvements, or said 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 municipal agency for such improvements.
[Amended 3-26-2018 by Ord. No. 53-2018]
A.Â
Form. A performance or maintenance guaranty required in connection
with the Buena Vista Township development regulations shall be in
one of the following forms, the proceeds of which may be claimed by
Buena Vista Township in the event that the requirements of final approval
guaranteed thereby are not met:
(1)Â
A corporate surety bond furnished by a bonding or surety company
authorized to do business in the State of New Jersey.
(2)Â
A certified or cashier's check made payable to the Township of Buena
Vista.
(3)Â
A certificate of deposit from a recognized banking institution, which
deposit may be withdrawn only after action by the governing body determining
that the requirements of final approval guaranteed thereby have been
fulfilled.
(4)Â
An irrevocable letter of credit from a recognized New Jersey banking
institution.
B.Â
Term. For all conventional development, performance guaranties shall
run for a term, to be fixed by the municipal agency, of no more than
three years, except that with the consent of the obligor and the surety,
if there is one, the governing body may, by resolution, extend the
term of such performance guaranty for an additional period, not to
exceed three years. The amount of the performance guaranty may be
reduced by the governing body by resolution when portions of the required
improvements have been satisfactorily installed.
C.Â
Lack of performance. If required improvements are not completed or
corrected in accordance with the performance guaranty, the obligor
or the surety, if there is one, shall be liable thereon to the municipality
for the reasonable cost of the improvements not completed or corrected,
and the municipality may, either prior to or after receipt of the
proceeds thereof, complete such improvements.
D.Â
Verification. All performance guaranties shall be submitted to the
Township Clerk. The Township Clerk shall forward one copy of any performance
guaranty to the Township Engineer, who shall notify the approval agency
and the Township Attorney if the performance guaranty is in sufficient
amount to assure the completion of all required improvements. In no
case shall a performance guaranty exceed 120% of the estimated cost
of installation for improvements covered. The performance guaranty
may cover street subbase, grading, pavement, gutters, curbs, sidewalks,
streetlighting, street trees, surveyor's monuments, water mains, sanitary
sewers, drainage structures, public open space improvements and, in
the case of site plans, privately owned perimeter buffer landscaping.
E.Â
Legal review. The Township Clerk shall forward a copy of the performance
guaranty to the Township Attorney who shall review and approve same
as to form and execution. The Township Attorney shall notify the municipal
agency as to the acceptability of the performance guaranty in terms
of its form and execution.
F.Â
Notice of expiration.
(1)Â
On the granting of final approval of a development and the accepting
of a performance guaranty in connection therewith by a municipal agency,
the agency's administrative officer shall so notify the Township Clerk
in writing.
(2)Â
The Township Clerk shall maintain a record of all performance guaranties
received in connection with development review and shall, within at
least 90 days of the expiration of such guaranty, notify the governing
body of said pending surety expiration. Copies of said notice shall
be sent to the municipal agency, Township Attorney and Township Engineer.
G.Â
Release.
(1)Â
When all of the required improvements have been completed, the obligor
shall notify the governing body, in writing, by certified mail, addressed
in care of the Township Clerk, of the completion of said improvements
and shall send a copy thereof to the Township Engineer. Thereupon,
the Township Engineer shall inspect all of the improvements and shall
file a detailed report, in writing, with the governing body recommending
either approval, partial approval or rejection of the improvements
with a statement of reasons for any rejection. If partial approval
is recommended, the cost of the improvements rejected shall be set
forth.
(2)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 the governing body with
relation thereto, not later than 65 days after receipt of the notice
from the obligor of the completion of the improvements.
(3)Â
Where partial approval is granted, the obligor shall be released
from all liability pursuant to its performance guaranty, except for
the portion adequately sufficient to secure provisions of the improvements
not yet approved. Failure of the governing body 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, shall be released from all liability.
H.Â
Rejection. If any portion of the required improvements are rejected,
the governing body 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.
[Amended 3-26-2018 by Ord. No. 53-2018]
A.Â
Establishment. Prior to final approval of any development application,
the municipal agency may require the developer to execute a maintenance
guaranty and post said guaranty with the Township Clerk as a surety
for maintenance and repair of all on-tract improvements required to
be installed by the developer that will be dedicated to a public authority.
B.Â
Term; amount. The maintenance guaranty shall run for a period of
two years from date of final acceptance of the improvements subject
to a performance guarantee by resolution of the governing body, after
recommendation of acceptance by the Township Engineer, and its amount
shall not exceed 15% of the Township Engineer's estimate of the cost
of construction of required improvements that are the subject of the
performance guarantee and that are being released, as well as for
the following private stormwater management improvements: basins,
in-flow and water quality structures within the basins, and the outflow
pipes and structures of the stormwater management system, if any.
The two-year term of the maintenance guarantee shall automatically
expire at the end of said term.
D.Â
Verification. All maintenance guaranties shall be presented to the
Township Clerk, who shall forward one copy of the guaranty to the
Township Engineer and one copy to the Township Attorney. The Township
Engineer shall advise the governing body and the Township Attorney
if the maintenance guaranty is executed in the correct amount; and
the Township Attorney shall notify the governing body as to the acceptability
of the maintenance guaranty in terms of its form and execution.
E.Â
Recordkeeping. The Township Clerk shall maintain a record of all
maintenance guaranties received by the municipality in connection
with development approval and shall notify the governing body, the
municipal agency and the Township Engineer 60 days prior to the expiration
date of any maintenance guaranty.
F.Â
Release of forfeiture. Prior to the expiration date of any maintenance
guaranty or to the release of any maintenance guaranty, the Township
Engineer shall inspect the improvements covered thereby and report
to the governing body concerning their condition and any deficiencies
remaining. Release of maintenance guaranty shall be by resolution
of the governing body based on recommendation for release by the Township
Engineer. The governing body may cause a maintenance guaranty or a
reasonable portion thereof to be forfeited if the report of the Township
Engineer illustrates clearly that deficiencies in original workmanship
or damage by the developer during the period of development have not
been corrected.
G.Â
Inspection fees. The obligor shall reimburse the Township for all
reasonable inspection fees paid to the Township Engineer for the foregoing
inspection of improvements, which may be posted in escrow in the following
manner:
(1)Â
An amount not to exceed, except for extraordinary circumstances,
the greater of $500 or 5% of the cost of bonded improvements that
are subject to a performance guarantee; and
(2)Â
An amount not to exceed 5% of the cost of private site improvements
that are not subject to a performance guarantee.
Where contributions for off-tract improvements as provided in § 115-33B have been required for street improvements or water, sewerage or drainage facilities, and easements therefor, as a condition for final development approval, said contribution shall be paid to the municipality prior to granting of final approval for any development. In the case of subdivisions, municipal agency approval shall not be granted and the plat or other filing document shall not be signed; in the case of any other development, final approval shall not be granted, no plats or plans shall be signed, a development permit shall not be issued or authorized and no building permit shall be issued; unless and until said required contribution for off-tract improvements has been received by the Township Clerk and he has certified receipt of the same to the municipal agency.
