a Before granting final site plan approval, the approving authority may require that the applicant shall have installed or shall have furnished performance guaranties for the installation of on-tract improvements in accordance with specifications, including streets, street signs, grading, pavement, curbs, gutters, sidewalks, walkways, lighting, shade trees and landscaping materials, water mains, fire hydrants, retaining walls, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements of open space and surveyor's monuments, as required by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:239.9 et seq.) and other off-site improvements as may be required herein.

b All such required improvements shall be certified by the Township Engineer, unless the applicant shall have filed a performance guarantee sufficient in amount to cover the cost of all such improvements or uncompleted portions thereof as estimated by the Township Engineer.

c (i) The cost of installation of such improvements shall be estimated by the municipal engineer based on documented construction costs for public Improvements in the general area of the municipality,

(ii) The developer may appeal the municipal engineer's estimate to the County Construction Board of Appeals.

**Webmaster's Note: The previous subsection has been added as per Ordinance No. 1196; April 13, 1995.

2. The developer may appeal the Municipal Engineer's estimate to the County Construction Board of Appeals. (Ord. #596; 1976 Code § 145-34; Ord. #1196, § V)

a. The performance guarantee shall be in favor of the Municipality in an amount not to exceed one hundred twenty (120%) percent of the cost of installation, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in section 15 of P.L. 1991, c.256 (C. 40:55D-53.4), for improvements which the approving authority may deem necessary or appropriate including: 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," P.L. 1960, c.141 (C.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 of open space and, in the case of site plans only, other on-site improvements and landscaping. The Municipal Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.

b. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the governing body 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 one hundred twenty (120%) percent of the cost of the installation, which cost shall be determined by the Municipal Engineer according to the method of calculation set forth in section 15 of P.L. 1991, c.256 (C. 40.55D-53.4) as of the time of the passage of the resolution.

c. 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 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. Such completion or correction of improvements shall be subject to the public bidding requirements of the "Local Public Contracts Law," P.L. 1971, c.198 (C. 40A:11-1 et seq.)

d. Request for Itemized Cost Estimate.

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 governing body in writing, by certified mail addressed in care of the Municipal Clerk that the Municipal Engineer prepare, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee 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 Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor Thereupon the Municipal Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the governing body, and shall simultaneously send a copy thereof to the obligor not later than forty-five (45) days after receipt of the obligor's request.

2. The list prepared by the Municipal 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 Municipal 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 guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer.

e. Approval or Rejection by Governing Body.

1. The governing body, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Municipal 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 guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee. This resolution shall be adopted not later than forty-five (45) days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by the governing body, and the developer submitting the required maintenance guarantee, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except of that portion adequately sufficient to secure completion or correction of the improvements not yet approved, provided that thirty (30%) percent of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

2. If the Municipal Engineer fails to send or provide the list and report as requested by the obligor pursuant to paragraph d. of this subsection within forty-five (45) days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Municipal 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.

If the governing body fails to approve or reject the improvements determined by the Municipal Engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within forty-five (45) days from the receipt of the Municipal 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 guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to paragraph a. of this subsection; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party

3.In the event that the obligor has made a cash deposit with the Municipality 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.

f. 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. The resolution shall include language stating that the request for release of the performance guarantee is rejected and that the developer shall, within ninety (90) days, submit a revised time schedule of completion of the improvements and shall further state that failure to complete the improvements or submit an acceptable time schedule may result in the Township Council authorizing the performance guarantees to be utilized for completion of the improvements by the Municipality or its contractors (Ord. #595; 1976 Code § 145-35; Ord. #1195, § III)

Prior to the acceptance of any on-tract improvement herein, a maintenance guaranty shall be furnished in favor of the Township for a period not to exceed two (2) years after final acceptance of the improvement in an amount not to exceed fifteen (15%) percent of the cost of the improvement. (Ord. #595; 1976 Code § 145-36)

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. (Ord. #595; 1976 Code § 145-37)