[Amended 11-4-2020 by Ord. No. 48-2020]
Before the recording of final site plan approval or as a condition
to the issuance of a zoning permit, the approving authority may require
performance and maintenance guarantees for the purpose of assuring
the installation and maintenance of on tract improvements, more specifically:
A. The furnishing of a performance guaranty in favor of the municipality,
in an amount not to exceed 120% of the cost of installation for improvements
it may deem necessary or appropriate, including streets, street signs,
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, P.L. 1960, c. 141 (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, topsoil protection, public improvements
of open space and, in the case of site plans only, other on-site improvements
and landscaping.
B. Provisions 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 cost of the
improvement. In the event that other governmental agencies or public
utilities automatically will own the utilities to be installed or
that 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. 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 Municipal 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 said body by resolution.
D. 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.
E. Prior to requesting a municipal engineering inspection of the completed
improvements, the applicant shall first deposit with the municipality
an engineering Inspection Escrow Fee equal to 5% of the previously
estimated construction cost to cover municipal costs of improvement
inspections. When all 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 Municipal Engineer.
Thereupon, the Municipal Engineer 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 rejection. If partial approval is
indicated, the cost of the improvements rejected shall be set forth.
Upon full acceptance of all improvements by the Municipal Engineer,
said engineer shall notify the governing body in writing that all
unencumbered Engineering Inspection Escrow funds may be released to
the applicant upon the applicant's written request to the governing
body for such refund.
F. The governing body shall either approve, partially approve or reject
the improvements, on the basis of the report of the Municipal Engineer,
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 65 days after the 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 end 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 pursuant to such performance
guaranty.
G. If any portion of the required improvements is 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.
H. 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 Municipal Engineer.