City of East Orange, NJ Performance Guaranties

Before recording of final subdivision plats, the approving authority may require and shall accept in accordance with the standards adopted by ordinance for the purpose of assuring the installation and maintenance of contract improvements:

(1)

The furnishing of a performance guaranty in favor of the municipality in an amount not to exceed 120% of the cost of installation for improvements it may deem necessary or appropriate, including streets, grading, pavement, water mains, stormwater drains, sanitary sewers, catch basins, dry wells, cleanouts, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments and fire hydrants, as shown on the final map and required by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:26B-1 et seq.), culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices and public improvements of open space. Performance guaranties required by this chapter shall run for the period specified by the Office of Comprehensive Planning but in no case for a term of more than three years.

(2)

Provision for a maintenance guaranty to be posted with the Office of Comprehensive Planning 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. 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 municipality for such utilities or improvements.

The amount of any performance guaranty may be reduced by the Office of Comprehensive Planning, by resolution, when portions of the improvements have been certified by the Director of Public Works to have been completed. The time allowed for installation of the improvements for which the performance guaranty has been provided may be extended by said body by resolution. The amount of the 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 as determined as of the time of the passage of the resolution.

If the required improvements are not completed or collected in accordance with the performance guaranty, the obligor and surety, if any, shall be liable thereon to the municipality for the reasonable cost of the improvements not completed or corrected, and the municipality 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 Office of Comprehensive Planning, in writing, by certified mail, of the completion of said improvements and shall send a copy thereof to the Director of Public Works. Thereupon the Director of Public Works shall inspect all of the improvements and shall file a detailed report, in writing, with the Office of Comprehensive Planning, 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. 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 provision of the improvements not yet approved, provided that 30% of the amount of the performance guaranty posted may be retained to insure completion of all improvements. Failure of the governing body to send or provide 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 for such improvements.

The Director of Public Works shall either approve, partially approve or reject the improvements 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 no 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 provision of the improvements not yet approved. Failure of the Office of Comprehensive Planning 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 are 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 section shall be followed.

Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the Office of Comprehensive Planning or the Director of Public Works.

The obligor shall reimburse the municipality for all reasonable inspection fees paid to the Director of Public Works for the foregoing inspection of the improvements.

In the event that final approval is by stages or sections of development, the provisions of this article shall be applied by stage or section.

The City Council may require a developer, as a condition of subdivision approval, to pay his pro rata share of the cost of providing reasonable and necessary street improvements and water, sewerage and drainage facilities, and easements therefor, located outside the property limits of the subdivision but necessitated or required by construction or improvements within such subdivision. Such requirements shall be based on circulation and comprehensive utility service plans and shall represent the applicant's pro rata share of the total improvements based on the pro rata share represented by his development compared to the total area served by the improvement. Where the developer pays the amount determined as his pro rata share under protest, he shall institute legal action within one year of such payment in order to preserve the right to a judicial determination as to the fairness and reasonableness of such amount.

The proposed development shall have no adverse effect on existing municipal utilities. Should additional or improved municipal utilities be required to prevent such adverse effect, the Planning Board or Board of Adjustment shall forward its recommendation regarding installation of the necessary improvements to the City Council and shall not issue final site plan approval until the applicant has entered into agreement with the City Council regarding installation of or payment for its proportionate share of such improvements.