Before recording of final subdivision plat or
as a condition of final site plan approval or as a condition to the
issuance of a zoning permit pursuant to subsection N.J.S.A. 40:55D-65d,
the Planning Board may require and shall accept in accordance with
the standards adopted by this chapter for the purpose of assuring
the installation and maintenance of on-tract and off-tract improvements:
A. The furnishing of a performance guaranty in favor
of the Township in an amount not to exceed 120% of the cost of installation
which cost shall be determined by the Township Engineer according
to the method of calculation set forth in Section 15 of P.L. 1991,
Chapter 256 (N.J.S.A. 40:55D-53.4), for improvements which the Planning
Board 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, Chapter 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, public improvements of open space, open space markers,
and in the case of site plans only, other on-site improvements and
landscaping. The Township Engineer shall prepare an itemized cost
estimate of the improvements covered by the performance guaranty,
which itemized cost estimate shall be appended to each performance
guaranty posted by the obligor.
B. The furnishing of a maintenance guaranty to be posted
with the Township Council 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, which cost shall be determined by
the Township Engineer according to the method of calculation set forth
in Section 15 of P.L. 1991, Chapter 256 (N.J.S.A. 40:55D-53.4). In
the event that other governmental agencies or public utilities automatically
will own the utilities to be installed or the improvements are covered
by performance or maintenance guaranty to another governmental agency,
no performance or maintenance guaranty, as the case may be, shall
be required by the Township for such utilities or improvements.
C. The time allowed for installation of the improvements
for which the performance guaranty has been provided may be extended
by the Township Council by resolution. As a condition or as part of
any such extension, the amount of any performance guaranty shall be
increased or reduced, as the case may be, to an amount not to exceed
120% of the cost of the installation which cost shall be determined
by the Township Engineer according to the method of calculation set
forth in Section 15 of P.L. 1991 Chapter 256 (N.J.S.A. 40:55D-53.4)
as of the time of the passage of the 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 Township for the
reasonable cost of the improvements not completed or corrected and
the Township may either prior to or after the receipt of the proceeds
thereof complete such improvements. Such completion or correction
of improvements shall not be subject to the public bidding requirements
of the Local Public Contracts Law, P.L. 1971, c. 198 (N.J.S.A. 40A:11-1
et seq.) as long as no public monies are expended for the completion
or correction.
E. Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the Township Council in writing, by certified mail addressed in care of the Township Clerk, that the Township Engineer prepare, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guaranty pursuant to §
112-194A of this chapter, a list of all uncompleted or unsatisfactorily completed improvements. If such a request is made, the obligor shall send a copy of the request to the Township Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the Township Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Township Council, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.
F. The list prepared by the Township Engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Township Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guaranty relating to the completed and satisfactory improvement. In accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guaranty pursuant to §
112-194A of this chapter.
G. The Township Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Township Engineer, or reject any or all of these improvements upon the establishment in the resolution of cause for rejection, and shall approve and authorize the amount of reduction to be made in the performance guaranty relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guaranty pursuant to §
112-194A of this chapter. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution by the Township Council, the obligor shall be released from all liability pursuant to its performance guaranty, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that 30% of the amount of the performance guaranty posted may be retained to ensure completion and acceptability of all improvements.
H. If the Township Engineer fails to send or provide the list and report as requested by the obligor pursuant to §
112-194E of this chapter within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Township Engineer to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
I. If the Township Council fails to approve or reject the improvements determined by the Township Engineer to be complete and satisfactory or reduce the performance guaranty for the complete and satisfactory improvements within 45 days from the receipt of the Township Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guaranty for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guaranty pursuant to §
112-194A of this chapter; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
J. In the event that the obligor has made a cash deposit
with the Township or Planning Board as part of the performance guaranty,
then any partial reduction granted in the performance guaranty pursuant
to this section shall be applied to the cash deposit in the same proportion
as the original cash deposit bears to the full amount of the performance
guaranty.
K. If any portion of the required improvements is rejected,
the Township Council may require the obligor to complete or correct
such improvements and, upon completion or correction, the same procedure
of notification, as set forth in this section shall be followed.
L. Nothing herein, however, shall be construed to limit
the right of the obligor to contest by legal proceedings any determination
of the Township Council or the Township Engineer.
M. The obligor shall reimburse the Township for all reasonable
inspection fees paid to the Township Engineer for the foregoing inspection
of improvements; provided that the Township may require of the developer
a deposit for the inspection fees in an amount not to exceed, except
for extraordinary circumstances, the greater of $500 or 5% of the
cost of improvements, which cost shall be determined pursuant to Section
15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).
N. In the event that final approval is by stages or sections
of development pursuant to Subsection a of Section 29 of P.L. 1975,
c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall
be applied by stage or section.
O. The Township shall not require that a maintenance
guaranty required pursuant to Section 41 of P.L. 1975, c. 291 (N.J.S.A.
40:55D-53) be in cash or that more than 10% of a performance guaranty
pursuant to that section be in cash. A developer may, however, provide
at his option some or all of a maintenance guaranty in cash, or more
than 10% of a performance guaranty in cash.
P. The cost of the installation of improvements for the
purposes of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53) shall
be estimated by the Township Engineer based on documented construction
costs for public improvements prevailing in the general area of the
Township. The developer may appeal the Township Engineer's estimate
to the Township Council. The Township Council shall decide the appeal
within 45 days of receipt of the appeal in writing by the Township
Clerk. After the developer posts a guaranty with the Township based
on the cost of the installation of improvements as determined by the
Township Council, he may institute legal action within one year of
the posting in order to preserve the right to a judicial determination
as to the fairness and reasonableness of the amount of the guaranty.
Q. The Township Council shall, for the purposes of Section
41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53), accept a performance
guaranty or maintenance guaranty which is an irrevocable letter of
credit if it:
(1) Constitutes an unconditional payment obligation of
the issuer running solely to the Township for an express initial period
of time in the amount determined pursuant to Section 41 of P.L. 1975,
c. 291 (N.J.S.A. 40:55D-53);
(2) Is issued by a banking or savings institution authorized
to do and doing business in this state;
(3) Is for a period of time of at least one year; and
(4) Consistent with the furnishing of an irrevocable letter
of credit, there shall be provided by the obligor, an irrevocable
letter of credit in the form set forth in Appendix B at the end of
this chapter. Obligor must use the preprinted form which is available
from the Township Engineering Department. The Township Attorney may
revise the preprinted form from time to time, but such revisions may
not alter the substance of such form unless authorized by an ordinance
implementing the revision.
R. If the Planning Board includes as a condition of approval
of an application for development pursuant to P.L. 1975, c. 291 (N.J.S.A.
40:55D-1 et seq.) the installation of streetlighting on a dedicated
public street connected to a public utility, then upon notification
in writing by the developer to the Planning Board and Township Council
that 1) the streetlighting on a dedicated public street has been installed
and accepted for service by the public utility and 2) that certificates
of occupancy have been issued for at least 50% of the dwelling units
and 50% of the floor area of the nonresidential uses on the dedicated
public street or portion thereof indicated by section pursuant to
Section 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the Township
shall, within 30 days following receipt of the notification, make
appropriate arrangements with the public utility for, and assume the
payment of, the costs of the streetlighting on the dedicated public
street on a continuing basis. Compliance by the Township with the
provisions of this section shall not be deemed to constitute acceptance
of the street by the Township.