A.
Before recording of final subdivision plats or as a condition of
final site plan approval, the approving authority 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
improvements:
(1)
The furnishing of a performance guaranty in favor of the Borough
in an amount not to exceed 120% of the cost of installation for improvements
it 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. 2011, c. 217, N.J.S.A. 46:26B-1 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
no more than 10% of the total performance guaranty shall be required
to be in cash, and the balance shall be in the form of a bond using
the standardized forms for a performance guarantee or maintenance
guarantee and letter of credit in accordance with N.J.S.A. 40:55D.[1]
(2)
The furnishing of a maintenance guaranty to be posted with the Borough
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.
B.
The Borough Engineer shall review the improvements required by the
approving authority which are to be bonded and itemize their cost.
Said itemization shall be the basis for determining the amount of
performance guaranty and maintenance guaranty required by the approving
authority. The Borough Engineer shall forward his estimate of the
cost of improvements to the applicant within 30 days of the date of
receipt of a request sent by certified mail for said estimate.
C.
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 for such utilities or improvements.
The amount of any performance guaranty may be reduced by the
Borough Council by resolution when portions of the improvements have
been certified by the Borough Engineer to have been completed. The
time allowed for installation of the improvements for which the performance
guaranty has been provided may be established by the Borough by resolution.
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 Borough for the reasonable
cost of the improvements not completed or corrected, and the Borough
may, either prior to or after the receipt of the proceeds thereof,
complete such improvements.
When all of the required improvements have been completed, the
obligor shall notify the Borough Council in writing, by certified
mail addressed in care of the Borough Clerk, of the completion of
said improvements and shall send a copy thereof to the Borough Engineer.
Thereupon, the Borough Engineer shall inspect all of the improvements
and shall file a detailed report, in writing, with the Borough Council,
indicating either approval, partial approval or rejection of the improvements,
with a statement of reasons for any rejection. If partial approval
is indicated, the cost of the improvements rejected shall be set forth.
The Borough Council shall either approve, partially approve
or reject the improvements on the basis of the report of the Borough
Engineer and shall notify the obligor in writing, by certified mail,
of the contents of said report and the action of said approving authority
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 the improvements
not yet approved. Failure of the Borough Council 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, shall be released from all liability pursuant to such performance
guaranty.
If any portion of the required improvements is rejected, the
approving authority may require the obligor to complete such improvements,
and upon completion the same procedure of notification as set forth
in this article shall be followed.
The obligor shall reimburse the Borough for all reasonable inspection
fees paid to the Borough Engineer for the foregoing inspection of
improvements.
