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 guaranty in accordance with the following standards:
A. The performance guaranty 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 the Township or Reviewing
Board may deem necessary or appropriate, including, but not limited
to, streets, grading, pavement, gutters, curbs, sidewalks, street
lighting, shade 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, culverts, storm sewers, sanitary sewers or other means of sewage
disposal, drainage structures, erosion control and sedimentation control
devices, public improvements and landscaping, provided that no more
than 10% of the total performance guaranty 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 guaranty 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 guaranty 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 guaranty to another governmental
agency, no performance guaranty shall be required from the Township
for such improvements.
B. If at any time during the period of time between acceptance of the
initial performance guaranty and the date of the Township Committee
formally releases such performance guaranty, the Township Committee
has reasonable cause to doubt the value, legality, enforceability
or effectiveness of such guaranty, all development activity for which
such guaranty was established shall be discontinued until such time
as a substitute guaranty, in form and substance equivalent to the
guaranty which was required to be in place at the time the status
of the original guaranty 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
guaranties:
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 quasi-governmental
agency or company or otherwise cease to do business.
3. The issuer of any performance guaranty shall serve on the Township,
notice of termination or cancellation of such guaranty.
C. The amount of any performance guaranty 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
guaranty has been provided may be extended by the Township Committee
by resolution.
D. 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
guaranty, may complete such improvements.
E. 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 within 45 days,
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.
F. 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 45 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 guaranty 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 45 days shall be deemed to constitute approval of the improvements and the obligor and surety, if any, subject to the requirements of §
18-401 below, shall be released from all liability pursuant to such performance guaranty.
G. 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.
H. The obligor shall reimburse the Township for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements, pursuant to §
18-401 below.