(a) Purpose. To insure compliance with the provisions of this Ordinance and any conditions imposed thereunder, the Commission may require that a performance guarantee be deposited with the Municipality to insure the faithful completion of improvements. Improvements for which the Municipality may require a performance guarantee include, but are not limited to, landscaping, berms, walls, lighting, surfacing of drives, parking, and acceleration/deceleration lanes, traffic control devices, sewer or water line expansion, storm water retention areas and land reclamation activities.
(b) Scope of Requirement. The performance guarantee can apply only to those specific features and actions which the Commission considers necessary to protect natural resources or the health, safety, or welfare of residents, project users, or the general public. A performance guarantee may not be required for the entire project. The guarantee is limited to those project components specifically designated by the Commission.
(c) General Requirements. A performance guarantee may be required by the Commission on the applicable portion(s) of a site plan under any of the following circumstances:
(1) To meet the costs of improvements required to be made by the applicant to public facilities owned by the Municipality as a condition of site plan approval.
(2) To ensure the completion of the common elements of site plan affecting two or more parties.
(3) To ensure the completion of those portions of a site plan which will not be completed by the applicant prior to a request for occupancy.
The Commission may require a performance guarantee on any other specific improvement when determined by resolution that the guarantee is necessary to protect the natural resources of the Municipality or the health, safety, or welfare of residents, project users, or the general public.
(d) General Conditions:
(1) The performance guarantee shall be submitted at the time of issuance of the permit authorizing the activity or project. No building permit or related Municipality permit shall be issued unless the Zoning Inspector is satisfied that the guarantee is in full compliance with this Chapter.
(2) The performance guarantee shall be in the form of:
A. A cash deposit or deposit by certified check drawn on a bank authorized to do business in the State, or
B. An irrevocable letter of credit issued on behalf of the Municipality by a bank authorized to do business in the State, or
C. A surety bond in a form and manner acceptable to the Municipal Attorney. The costs of the review of a surety bond by the Municipal Attorney shall be paid by the applicant as part of the issuance of a permit.
(3) The amount of the performance guarantee shall be sufficient to cover the estimated cost of the improvements associated with a project for which site plan approval or zoning variance has been obtained. Accordingly, the applicant shall provide an itemized listing of estimated costs and a proposed time schedule to complete all of the improvements determined to require a performance guarantee. The Zoning Inspector shall review the submitted costs for reasonableness and shall determine an accurate amount for the performance guarantee. In determining the amount, the Zoning Inspector may consider signed contracts or sub-contracts supplied by the applicant or the Zoning Inspector may secure or require that the applicant secure a sealed statement from a licensed architect or engineer verifying the estimates.
(4) Cash funds or a certified check made payable to the Municipality shall be deposited by the Municipality into a non-interest bearing account in a financial institution with which the Municipality regularly conducts business.
(5) In the case of a guarantee exceeding two thousand dollars ($2000), and by request of the applicant, the guarantee may be released to the applicant in an amount proportional to the work completed on various elements, provided that a minimum of ten percent (10%) shall be retained on each element until the satisfactory completion of the entire project. The amount of work completed shall be based upon an inspection and determination by the Zoning Inspector.
(6) An amount not to exceed the actual cost of the installation of landscape materials may be retained by the Municipality for at least one (1) year following the installation of said materials to insure proper maintenance and, if necessary, replacement. This amount shall be released to the applicant upon certification by the Zoning Inspector that all landscape materials are being maintained in good condition.
(7) Prior to the acceptance of a public improvement by the Municipality and upon the recommendation of the Engineer, the Zoning Inspector may require a maintenance bond for the public improvement in an amount not to exceed thirty-five (35) percent of the total cost of the improvement and to remain in effect for a period not to exceed three (3) years.
(8) The unexpended balance of a performance guarantee, including interest accrued, shall be returned to the applicant following inspections by the appropriate officials and a positive determination by the Zoning Inspector that the required improvements have been satisfactorily completed and that all other requirements of this Chapter are met.
(e) Unsatisfactory Completion of Improvements. When required improvements are not installed or maintained within the time stipulated or are not completed in accordance with the standards set forth within this Ordinance or as agreed upon between the applicant and the Commission the Zoning Inspector may order the improvements completed by the County or by an independent contractor, or may order that the site be returned to its original condition.
(1) The Zoning Inspector shall order the completion of the improvements and so notify the applicant by certified mail at least fourteen (14) calendar days prior to the undertaking of completion. During this time period, the applicant may seek an order from a court of competent jurisdiction to prevent the action by the Municipality.
(2) All costs incurred by the Municipality for the completion of the improvements or the restoration of the site, including direct administrative costs, shall be assessed against the performance guarantee including any interest accrued on any funds deposited in escrow.
(f) Subdivision Improvements. This Chapter shall not be applicable to improvements for which a cash deposit, certified check, irrevocable bank letter of credit, or surety bond has been deposited with the Municipality by the applicant pursuant to Section 1177.02.
(Ord. 1166. Passed 9-24-01.)