(A) As a condition of final development approval, the reviewing board shall require, for the purpose of assuring the installation of all improvements required under such approval, that the applicant furnish a performance guaranty in accordance with the following standards:
(1) The performance guaranty must run in favor of the township, and be in an amount not to exceed 120%, rounded to the nearest dollar; of the cost of installation of improvements the township may deem necessary or appropriate, including, but not limited to, streets, 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, (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 and landscaping, provided that the township may not require more than 10% of the total performance guaranty to be in cash and the balance shall be in the form of a surety bond issued by a bonding company licensed to do business in the State of New Jersey or a letter of credit issued by a banking institution licensed to do business in the State of New Jersey. Nothing herein shall preclude the township from accepting a full cash performance guaranty. Such bond or letter of credit must be approved and accepted by the township governing body. The Township Engineer shall review the improvements required by the reviewing board, which are to be bonded and itemize their cost. This itemization shall be the basis for determining the amount of the performance guaranty required by the township and the inspection fees required by this code. The Township Engineer shall forward his/her estimate of the cost of improvements to the applicant within 30 days after the date of receipt of a request sent by certified mail for this estimate. Any performance guaranty delivered to the Township Clerk pursuant to this section shall be for an initial term of not less than two years, shall provide for automatic one-year renewals and shall only be terminable on the date of expiration, either of the original period or any renewal period, upon not less than 60 days advanced written notice. In the event that any of the improvements to be installed are covered by a performance guaranty to another governmental agency, no performance guaranty shall be required from the township for such improvements.
(2) If at any time during the period of time between acceptance of the initial performance guaranty and the date of the Township Committee's formal release of such performance guaranty, the Township Committee has reasonable cause to doubt the value, legality, enforceability or effectiveness of such guaranty, all development activity for which such guaranty was established shall be discontinued until such time as a substitute guaranty, in form and substance equivalent to the guaranty which was required to be in place at the time the status of the original guaranty was questioned, shall be delivered to and accepted by the Township Committee. By way of illustration and not limitation, the following shall be instances of reasonable cause to doubt the value, legality, enforceability or effectiveness of such guaranties:
(a) The company issuing the bond shall cease to do business, declare insolvency or bankruptcy or be forced into involuntary bankruptcy.
(b) The bank, savings and loan, credit union, mortgage banking company or other banking or banking-like entity issuing a letter of credit shall become insolvent, be taken over by any governmental or quasi-governmental agency or company or otherwise cease to do business.
(c) The issuer of any performance guaranty shall serve on the township notice of termination or cancellation of such guaranty.
(B) The amount of any performance guaranty may be reduced by the Township Committee, by resolution, when portions of the improvements have been certified by the Township 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 the Township Committee by resolution.
(C) If the required improvements are not completed or corrected in accordance with the finally approved development plans and approvals, the obligor and surety shall be liable thereon to the township for the reasonable cost of the improvements not completed or corrected, and the Township, either prior to or after the receipt of the proceeds of the performance guaranty, may complete such improvements.
(D) When all of the required improvements have been completed, the obligor shall notify the administrative officer, in writing, by certified mail, with a copy to the Municipal Clerk, of the completion of such improvements and shall send a copy thereof to the Township Engineer. Upon receipt of this notice, the Township Engineer shall inspect all of the improvements and shall file a detailed report, in writing, with the administrative officer, 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.
(1) The Township Committee shall either approve, partially approve or reject the improvements on the basis of the report of the Township Engineer and shall notify the obligor, in writing, by certified mail, of the contents of the Township Engineer's report and the action of the Township Committee with relation thereto not later than 65 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 completion of the improvements not yet approved. Failure of the Township Committee to send 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, subject to the requirements of § 156.031 below, shall be released from all liability pursuant to such performance guaranty.
(2) If any portion of the required improvements is rejected, the obligor shall complete such improvements, and, upon completion, the same procedure of notification as set forth in this section shall be followed.
(E) The obligor shall reimburse the township for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements, pursuant to § 156.033 below.
(Ord. 945-99, passed 9-13-99; Am. Ord. 12-02, passed 6-24-02)