§ 165-40. Performance and maintenance guarantees.

A. 

Before execution of the final subdivision plat, as a condition of final site plan approval or as a condition to the granting of a development approval pursuant to N.J.S.A. 40:55D-1 et seq., the applicant shall have installed all improvements required by the Planning Board, except that the Borough Council may require and shall accept in accordance with the standards adopted herein for the purpose of assuring the installation and maintenance of on-tract improvements the following:

(1) 

The furnishing of a performance guarantee in favor of the Borough in an amount not to exceed 120% of the cost of installation for all improvements not installed prior to final approval.

(2) 

A maximum of 10% of the total guarantee required shall be in cash. All of the improvements shall be subject to inspection and approval by the Borough Engineer, who shall be notified by the developer at least 48 hours prior to the start of the construction. No underground installations shall be covered until inspected and approved.

B. 

Provision for a maintenance guarantee to be posted with the Borough Council for a period not to exceed two years after final acceptance of the improvements, in an amount not to exceed 15% of the cost of the improvement.

C. 

The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of installation as determined as of the time of the passage of the resolution.

D. 

If the required improvements are not completed or corrected in accordance with the performance guarantee, 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.

E. 

List of uncompleted improvements.

(1) 

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 Borough Council in writing, by certified mail, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section, a list of all uncompleted or unsatisfactory completed improvements. A copy of the request shall be sent to the Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon, the Borough Engineer shall inspect all improvements covered by the request, and shall file a written list and report with the Borough Council, with a copy to the obligor, not later than 45 days after the receipt of the obligor's request.

(2) 

The list prepared by the Borough 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 shall also 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 guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection A of this section.

F. 

Reduction of performance guarantee.

(1) 

The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough Engineer or reject any or all of these improvements and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted in accordance with the itemized cost estimate prepared by the Borough Engineer. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough Council, the obligor shall be released from all liability pursuant to its performance guarantee, 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 guarantee posted may be retained to ensure completion of all acceptability of all improvements.

(2) 

In the event that the obligor has made a cash deposit with the Borough or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this subsection shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

G. 

If any portion of the required improvements is rejected, the approving authority may require the obligor to complete or correct such improvements and, upon completion or correction, the same procedure of notification as set forth in this section shall be followed.

H. 

Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the Borough Council or the Borough Engineer.

I. 

The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements, provided that the Borough may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4). For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees. For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developers has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.

J. 

In the event that final approval is by stages or sections of development pursuant to subsection a of Section 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.

K. 

To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guarantee required pursuant to Subsection A of this section, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Borough Engineer.

L. 

Building permits in a subdivision or site plan or approved subsection thereof, except for model buildings in the first subsection, will be issued only when all improvements, with the exception of the following, shall have been installed to serve all lots and structures within the subdivision or site plan or approved subsection thereof and approved by the Borough Engineer:

(1) 

The final bituminous surface course of streets;

(2) 

Street signs;

(3) 

Dry wells and swales as may be required;

(4) 

Monuments;

(5) 

Shade trees;

(6) 

Sidewalks; and

(7) 

In the case of site plans only, landscaping.

M. 

Permits for model buildings in the front subsection or 10% of the total number to be built in said subsection, whichever is less, but not to exceed six, may be issued on commencement of construction improvements.

N. 

Installation of sidewalks on a lot shall be completed prior to the issuance of a certificate of occupancy for that lot.

O. 

Notwithstanding any provision of this chapter to the contrary, upon completion of all improvements but prior to acceptance by the Borough Council of such improvements and prior to the release of any performance guarantee which may have been posted, deeds must be received, free and clear of all mortgages and encumbrances, for all fee and other property interests and improvements to be conveyed to the Borough.

P. 

A site plan bond shall be posted prior to each disturbance.