When a performance guarantee is required under
this article:
A. The performance guarantee shall be furnished in favor of the Township in the amount of the "performance guarantee estimate" as determined by the Township Engineer pursuant to §
470-32.
B. A letter of credit shall be an acceptable form of performance guarantee if approved by the Township Attorney pursuant to §
470-35 and only under the following conditions:
(1) It is revocable for an initial period of at least
two years with automatic one-year renewal unless the bank notifies
the Township in writing by certified mail at least 90 days before
the initial date of expiration or each anniversary of such date that
it will not be renewed;
(2) If the letter of credit is not renewed the Township
shall have the right to immediately draw a draft on sight if the developer's
performance is not satisfactory as of that date, or to draw a draft
30 days after receipt of said notice if, after notification by the
Township that the letter of credit will not be renewed, the developer
fails to submit a satisfactory replacement performance guarantee;
and
(3) The developer agrees to cease and desist all such
work upon receipt of notification from the Township that the letter
of credit will not be renewed until such time as a satisfactory replacement
performance guarantee is submitted; and
(4) The developer shall execute any agreement(s) required
by the Township Attorney confirming the conditions set forth herein
prior to the Township's acceptance of said letter of credit.
C. A performance bond, cash, or a certified check shall
be an acceptable form of performance guarantee. The performance bond,
in which the owner shall be principal, shall be provided by an acceptable
surety company licensed to do business in the State of New Jersey,
or in lieu of the bond, cash or a certified check shall be deposited
with the Township by payment to the Township Treasurer. The Township
Treasurer shall issue a receipt for such cash deposits and shall cause
such cash to be deposited in a bank named by the Township, in the
name of the Township, to be retained as security for completion of
all requirements and then be returned to the owner upon completion
of all required work and expiration of the period of the guarantee,
or, in the event of default on the part of the owner, to be used by
the Township to pay the cost and expense of obtaining completion of
all requirements. Every bond, whether cash or surety, shall contain
a clause to the effect that a determination by the Township Engineer
that the principal has defaulted in the performance of his obligation
shall be binding and conclusive upon the surety and the principal.
D. Ten percent of the amount of the performance guarantee
shall be deposited by the owner in cash with the Township. The remaining
90% may be in cash, a surety bond, or a letter of credit. In the event
of default, the 10% fund herein mentioned shall be first applied to
the completion of the requirements and the cash or the surety bond
shall thereafter be resorted to, if necessary, for the completion
of the requirements. The surety bond may recite the foregoing provisions.
E. Except as hereafter provided, the required improvements
shall be at least 50% completed as to each category set forth in the
performance guarantee within one year from the date of final approval,
or by such time as 50% of the lots in the section in question have
been conveyed, in any manner, by the applicant, whichever shall first
occur. At least 75% of the remaining required improvements in each
category shall be completed as set forth in the performance guarantee
within 18 months from the date of final approval, or by such time
as 75% of the lots in the section have been conveyed, whichever shall
first occur. Such improvements shall be 100% completed and accepted
by the Township within two years from the date of final approval,
or at such time as all of the lots in the section in question have
been conveyed in any manner by the applicant, whichever shall first
occur. It is the intention of the Township Council that this requirement
will provide to those living in each new section of a subdivision
a lot that is as complete as possible with respect to tract and individual
lot improvements.
F. The time allowed for installation of the improvements
for which the performance guarantee 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 guarantee shall
be increased or reduced as the case may be to an amount not to exceed
120% of the cost of installation as determined as of the time of the
passage of the resolution.
G. If the required improvements are not completed or
corrected in accordance with the performance guarantee, the developer
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. The Township shall also have
all other remedies as may be lawfully available.
H. Completion of improvements; procedure for release.
The release or partial release of performance guarantees shall be
governed by the procedures set forth in N.J.S.A. 40:55D-53.
[Amended 3-5-2003 by Ord. No. 2003-11]
The approval of any application for development
by the Township shall in no way be construed as acceptance of any
street or drainage system, or any other improvement, nor shall such
approval obligate the Township in any way to maintain or exercise
jurisdiction over such street or drainage system or other improvement.
No improvement shall be accepted by the Township Council unless and
until all of the following conditions have been met:
A. The Township Engineer has certified in writing that
the improvements are complete and that they comply with the requirements
of this Land Development Ordinance.
B. The final application for development has been approved
by the Planning Board; and
C. If required, pursuant to §
470-34, the owner has filed the required maintenance guarantee.
D. As-built plans for any development have been provided
to the Township as directed by the Township Engineer.
When, pursuant to §
470-29, a performance guarantee is required, a performance guarantee estimate shall be prepared by the Township Engineer setting forth all requirements as fixed by the Board and the estimated cost. The Board shall either approve or adjust this performance guarantee estimate.