The performance guarantee for the installation of those improvements required shall be in favor of the Township in an amount equal to one hundred twenty (120%) percent of the cost of such improvements as determined by the Township Engineer in accordance with the method of calculation set forth in subsection 19-4 1002 the Township 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 At least ten (10%) percent of the performance guarantee shall be in the form of cash or a certified check made payable to the Township

a. The performance guarantee shall run for a term not to exceed eighteen (18) months from the date of final approval With the consent of the principal, the performance guarantee may be extended by the Governing Body, after the recommendation by the Planning Board by resolution for an additional period not exceeding eighteen (18) months 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 Township Engineer as of the time of the passage of the resolution, in accordance with the method of calculation set forth in subsection 19-4 1002

b. 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 Township for the reasonable cost of the improvements not completed or corrected and the Township 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 (N.J.S.A. 40A 11- 1, et seq)

c. 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 Township Clerk, that the Township Engineer prepare, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to paragraph a of this subsection, 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 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 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 guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to paragraph a. of this subsection

d. The Governing Body, 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 guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee pursuant to paragraph a of this subsection This resolution shall be adopted not later than forty-five (45) days after receipt of the list and report prepared by the Township Engineer Upon adoption of the resolution of the Governing Body, 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 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 Township 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 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

If the Governing Body fails to approve or reject the improvements determined by the Township 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 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 guarantee for the approvable complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Township 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

e. If any portion of the required improvements is rejected, the Governing Body 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 subsection shall be followed

f. The obligor shall reimburse the municipality for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements, provided that the municipality may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of five hundred ($500 00) dollars or five (5%) percent of the cost of improvements, which cost shall be determined pursuant to subsection 19-4 1002 For those developments for which the reasonably anticipated fees are less than ten thousand ($10,000 00) dollars, fees may, at the option of the developer, be paid in two (2) installments The initial amount deposited by a developer shall be fifty (50%) percent of the reasonably anticipated fees When the balance on deposit drops to ten (10%) percent of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Township Engineer for inspection, the developer shall deposit the remaining fifty (50%) percent of the anticipated inspection fees For those developments for which the reasonably anticipated fees are ten thousand ($10,000,00) dollars or greater, fees may, at the option of the developer, be paid in four (4) installments The initial amount deposited by a developer shall be twenty-five (25%) percent of the reasonably anticipated fees When the balance on deposit drops to ten (10%) percent of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the municipal engineer for inspection, the developer shall make additional deposits of twenty-five (25%) percent of the reasonably anticipated fees The Township Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit

g. In the event that final approval is by stages or sections of development pursuant to subsection 19-4 804b of this Chapter, the provisions of this subsection shall be applied by stage or section

h. The Governing Body shall, for the purposes of this Section, accept a performance guarantee which is an irrevocable letter of credit, if it.

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 subsection 19-4,1001,

2. Is issued by a financially stable banking or savings institution authorized to do and doing business in this State;

3. Is for a period of time of at least one (1) 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 thirty (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

To the extent that any of the improvements have been dedicated to the Township of the subdivision plat or site plan, the Governing Body shall be deemed, upon the release of any performance guarantee required pursuant to this subsection, 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 Township Engineer (Ord #2-77, 19-4,1001, Ord #7-80, 16, Ord #4-84, 16, Ord #7-93, 1)

The cost of the installation of improvements for the purposes of subsection 19-4 1001 shall be estimated by the Township Engineer based on documented construction costs for public improvements prevailing in the general area of the Township of Denville The developer may appeal the Township Engineer's estimate to the Governing Body The Governing Body shall decide the appeal within forty-five (45) days of receipt of the appeal in writing by the Municipal Clerk After the developer posts a guarantee with the Township based on the cost of the installation of improvements as determined by the Governing Body, he may institute legal action within one (1) 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 guarantee (Ord #16-92, 1, Ord #7-93, 1)