A.
If a performance guaranty is required, it shall be
posted in favor of the Township in an amount equal to 120% of the
cost of installation or completion of installation of those improvements
required by an approval or developer's agreement, ordinance, or regulation
to be dedicated to a public entity, and that have not yet been installed
as determined by the Township Engineer according to the method of
calculation set forth below. The performance guaranty shall assure
the installation of all required but uncompleted improvements on or
before an agreed date. The performance guaranty shall be approved
by the Township Attorney as to form, sufficiency and execution. The
Township Engineer shall prepare an itemized cost estimate of the improvements
covered by the guaranty, which itemized cost estimate shall be appended
to each performance guaranty posted by the obligor.
[Amended 10-13-1992 by Ord. No. 10-92; 12-9-1996 by Ord. No. 8-96; 6-11-2018 by Ord. No. 12-18]
(1)
Developer's agreement. Coincident with the furnishing
of any performance guaranty by the developer, there shall be executed
an agreement between the developer and the Township of Harding incorporating
all of the terms and conditions of approval imposed by the Planning
Board or Board of Adjustment consistent with subdivision or site plan
approval. Such agreement shall also contain provisions respecting
compliance with all applicable municipal ordinances, the approved
plans and specifications, the schedule of work and completion date,
the inspection and approval of work by the Township Engineer, the
payment of inspection fees, the correction of defective work, and
the rights of the Township to enforce compliance with the agreement
and to alleviate any adverse conditions or impacts caused by the applicant
and not corrected after due notice, with the costs of the foregoing
to be borne by the applicant. The agreement shall also provide for
the posting of a maintenance guaranty, if required by the Township,
consistent with the provisions of this chapter.
[Amended 12-9-1996 by Ord. No. 8-96]
(2)
The cost of the installation of improvements 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 Committee. The Township Committee 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 Committee, 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.
(3)
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.
Prior to the release of a performance guaranty, the developer shall
file with the Township Clerk as-built drawings, in ink, on tracing
cloth or a Mylar reproducible drawing, accurately showing the location,
profile and size of any storm drains, water mains, electric and telephone
lines, including service connections constructed within the development.
(4)
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. 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 pursuant to § 225-51A(2) of this chapter.
(5)
If the required improvements are not completed or
corrected in accordance with a performance guaranty, or if the premises
are not restored after a project has been abandoned, 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 for the reasonable
expense of restoring the premises after abandonment, and the Township
may, either prior to or after the receipt of the proceeds thereof,
complete such improvements or restore the premises. The Township Engineer's
determination that the obligor has defaulted in his obligation shall
be binding and conclusive upon the obligor.
(6)
Municipal Engineer's review of improvements.
(a)
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 Committee 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 this section of the Code, a list of all uncompleted or unsatisfactory
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
Committee and shall simultaneously send a copy thereof to the obligor
not later than 45 days after receipt of the obligor's request.
(b)
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 this section of the Code.
(7)
Reduction of performance guaranty.
(a)
The Township Committee, 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 this
section of the Code. 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 Committee,
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 shall be retained to ensure completion
and acceptability of all improvements.
(b)
Obligor's legal recourse.
[1]
If the Township Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection A(5) of this section 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.
[2]
If the Township Committee 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 approval
of complete and satisfactory improvements in accordance with the itemized
cost estimate prepared by the Township Engineer and appended to the
performance guaranty pursuant to this section; and the cost of applying
to the court, including reasonable attorney's fees, may be awarded
to the prevailing party.
(c)
In the event that the obligor made a cash deposit
as part of the performance guaranty, then any partial reduction granted
in the performance guaranty pursuant to this section of the Code 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.
(8)
If any portion of the required improvements is rejected,
the obligor shall complete or correct such improvements, and, upon
completion or correction, the same procedure of notification as set
forth in this section shall be followed.
(9)
At the time when he files a performance guaranty,
a developer or his general contractor shall also file with the Township
Clerk a certificate of insurance guaranteeing notification to the
Township in the event of cancellation of his comprehensive general
liability insurance policy or of the worker's compensation policy
or employer's liability policy, which he shall maintain or cause all
subcontractors to maintain. All of the aforesaid policies shall be
subject to the approval of the Township Attorney and shall name the
Township as an additional insured. The comprehensive general liability
policy shall have limits of at least $500,000 for bodily injury to
each person and at least $1,000,000 in the aggregate for each accident,
and property liability of at least $50,000 for each accident and at
least $100,000 aggregate property damage.
(10)
In the event that a developer seeks a temporary certificate
of occupancy for a development, unit, lot, building or phase of development,
as a condition of the issuance thereof, the developer shall furnish
a separate guarantee referred to as a "temporary certificate of occupancy
guarantee" in favor of the Township of Harding in an amount equal
to 120% of the cost of installation of only those improvements which
are required to be installed or completed as a condition precedent
to the issuance of the permanent certificate of occupancy for the
development, unit, lot, building or phase of development and which
are not covered by an existing performance guarantee. Upon the posting
of a temporary certificate of occupancy guarantee, all sums remaining
under a performance guarantee required by the Township of Harding
shall be released. The scope and amount of the temporary certificate
of occupancy guarantee shall be determined by the Township Engineer.
A temporary certificate of occupancy may be released by the Township
Engineer upon the issuance of a permanent certificate of occupancy.
(11)
At no time may the Township of Harding hold more than one guarantee
or bond of any type with respect to the same line item.
(12)
Every developer shall provide a safety and stabilization guarantee
in favor of the Township of Harding. At the developer's option, a
safety and stabilization guarantee may be furnished either as a separate
guarantee or as a line item of the performance guarantee. A safety
and stabilization guarantee shall only be available to the Township
when: i) site disturbance has commenced and, thereafter, all work
on the development has ceased for a period of at least 60 consecutive
days following such commencement for reasons other than force majeure,
and ii) work has not recommenced within 30 days following the provision
of written notice by the municipality to the developer of the municipality's
intent to claim payment under the guarantee. The Township shall not
provide notice of its intent to claim payment under a safety and stabilization
guarantee until a period of at least 60 days has elapsed during which
all the work on the development has ceased for reasons other than
force majeure. The Township shall provide written notice to a developer
by certified mail or other form of delivery providing evidence of
receipt. The amount of a safety and stabilization guarantee for a
development with bonded improvements in an amount not exceeding $100,000
shall be $5,000. The amount of a safety and stabilization guarantee
for a development with bonded improvements exceeding $100,000 shall
be calculated as a percentage of the bonded development costs of the
development or phase of development as follows: $5,000 for the first
$100,000 of bonded improvement costs, plus 2.5% of bonded improvements
costs in excess of $100,000 up to $1,000,000, plus 1% of bonded improvement
costs in excess of $1,000,000. The Township shall release a developer's
safety and stabilization guarantee upon the developer's furnishing
of a performance guarantee which includes a line item for safety and
stabilization in the amount required by this subsection. The Township
shall also release a developer's safety and stabilization guarantee
upon the municipal engineer's determination that the development of
the project site has reached a point that the improvements installed
are adequate to avoid any potential threat to public safety.
B.
The Township shall require a developer to post a maintenance guarantee for those improvements that are subject to a performance guarantee that are being released and also upon the inspection and issuance of final approval of the following site improvements: i) stormwater management basins: ii) inflow and water quality structures within the basins; and iii) the outflow pipes and structures of the stormwater management systems, if any. The amount of the maintenance guarantee shall not exceed 15% of the cost of the improvements which are being released, which cost shall be determined by the Township Engineer according to the method of calculation set forth in § 225-51A(2) of this chapter. The term of any maintenance guarantee required by this subsection shall be for a period not to exceed two years and shall automatically expire at the end of the established term. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or 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 Township for such utilities or improvements.
[Amended 10-13-1992 by Ord. No. 10-92; 6-11-2018 by Ord. No. 12-18]
D.
A performance guaranty or maintenance guaranty which
is an irrevocable letter of credit shall be accepted if it:
[Added 10-13-1992 by Ord. No. 10-92]
(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 this section of the Code;
(2)
Is issued by a banking or savings institution authorized
to do and doing business in New Jersey;
(3)
Is for a period of time of at least one year; and
(4)
Permits the Township to draw upon the letter of credit
if the obligor fails to furnish another letter of credit which complies
with the provisions of this section 30 days or more in advance of
the expiration date of the letter of credit or such longer period
in advance thereof as is stated in the letter of credit.
E.
The Township shall not require that a maintenance
guaranty required pursuant to this section be in cash or that more
than 10% of a performance guaranty pursuant to this section be in
cash. A developer may, however, provide at his option some or all
or a maintenance guaranty in cash, or more than 10% of a performance
guaranty in cash.
[Added 10-13-1992 by Ord. No. 10-92]
