Prior to approval of final subdivision plats or granting of
final site plan approval or as a condition of such approvals, the
Board shall, for the purpose of assuring the installation and maintenance
of on-tract improvements, require the following:
A.
The furnishing of a performance guaranty in favor of the municipality
in an amount not to exceed 120% of the cost of installation of the
improvements as approved by the Board Consultant, as it may deem necessary
or appropriate, including: streets, grading, pavement, gutters, curbs,
sidewalks, streetlighting, shade trees, surveyor's monuments, as shown
on the final map and required by the Map Filing Law, P.L. 1960, c.
141 (N.J.S.A. 46:23-9.9 et seq.)[1], 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. Of such performance guaranty a minimum of 10% must be
in the form of cash, bank check, money order or certified check made
payable to the municipality, and the remainder shall be in the form
of a corporation surety performance bond or letter of credit issued
by an authorized New Jersey corporation. The Municipal Attorney shall
approve the performance guaranty as to form, sufficiency and execution.
The Board Consultant shall approve the performance guaranty as to
size and scope.
[1]
Editor's Note: Map filing law, see now N.J.S.A. 46:26B-1 et
seq.
B.
Provision for a maintenance guaranty to be posted with the governing
body for a period not to exceed two years after final acceptance of
the improvement, in an amount not to exceed 15% of the approved total
Bond amount. In the event that other governmental agencies or public
utilities automatically will own the utilities to be installed or
the 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 municipality for such
utilities or improvements.
C.
All improvements and utility installations shall be inspected during
the time of their installation under the supervision of the Board
Consultant and/or Municipal Engineer to ensure satisfactory completion.
The cost of said inspection shall be the responsibility of the subdivider
and shall be deposited with the Municipal Clerk as cash or certified
check equal to 5% of the performance guaranty, to be applied to the
cost of inspection of public improvements by the Board Consultant
and/or Municipal Engineer.
The amount of any performance guaranty may be reduced by the
governing body, by resolution, when portions of the improvements have
been certified by the Board Consultant or whoever is performing the
site inspections to have been completed. The time allowed for installation
of the improvements for which the performance guaranty has been provided
may be extended by said body by resolution.
A.
If the required improvements are not completed or corrected in accordance
with the performance guaranty, the obligor and surety, if any, 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 the receipt of the proceeds thereof, complete
such improvements.
B.
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 Municipal Clerk, of the completion of said improvements
and shall send a copy thereof to the Borough Consultant. Thereupon
the Borough Consultant shall inspect all of the improvements and shall
file a detailed report in writing with the governing body, indicating
either approval, partial approval or rejection of the improvements
with a statement of reasons for any rejection. If partial approval
is indicated, the cost of the improvements rejected shall be set forth.
C.
The governing body shall either approve, partially approve or reject
the improvements on the basis of the report of the Borough Consultant
and shall notify the obligor in writing, by certified mail, of the
contents of said report and the action of said approving authority
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 its performance guaranty, except for that portion
adequately sufficient to secure provision of the improvements not
yet approved. Failure of the governing body 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,
shall be released from all liability pursuant to such performance
guaranty.
D.
If any portion of the required improvements are rejected, the approving
authority 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.
E.
Nothing herein, however, shall be construed to limit the right of
the obligor to contest by legal proceedings any determination of the
governing body or the Board Consultant. The municipality shall return
any balance of the inspection fee to the development applicant upon
expiration of the maintenance bond, together with a statement of charges
against this amount.
