(Amended 4/27/93 by Ord. No. 1773]
A. Before recording of final subdivision plat or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to subsection C.40:55D-65d, the Planning Board may require and shall accept in accordance with the standards adopted by this ordinance for the purpose of assuring the installation and maintenance of on-tract and off-tract improvements:
(1) The furnishing of a performance guarantee in favor of the Township in an amount not to exceed one hundred-twenty (120) percent of the cost of installation which cost shall be determined by the Township Engineer according to the method of calculation set forth in Section 15 of P.L. 1991 Chapter 256 for improvements which the Planning Board 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, Chapter 141 (N.J.S.A. 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, open Space Markers, and in the case of site plans only, other on-site improvements and landscaping. 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. [Amended 7/8/97 by Ord. No. 2021]
(2) The furnishing of a maintenance guarantee to be posted with the Township Council for a period not to exceed two (2) years after final acceptance of the improvement, in an amount not to exceed 15 percent of the cost of the improvement, which cost shall be determined by the Township Engineer according to the method of calculation set forth in section 15 of P.L. 1991 Chapter 256. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or the improvements are covered by performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the Township for-such utilities or improvements.
(3) The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Township 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 the installation which cost shall be determined by the Township Engineer according to the method of calculation set forth in section 15 of P.L. 1991 Chapter 256 as of the time of the passage of the resolution.
(4) 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 not be subject to the public bidding requirements of the Local Public Contracts Law, P.L. 1971, c.198 (C.40A:11-1 et seq.) as long as no public monies are expended for the completion or correction.
(5) 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 Township Council 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 Section 11225A(1) of this ordinance, a list of all uncompleted or unsatisfactorily 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 judgement 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 Township Council, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.
(6) 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 Section 112-25A(l) of this Ordinance.
(7) The Township Council, 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 Section 11225A(l) of this Ordinance. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Township Engineer. Upon adoption of the resolution by the Township 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 and acceptability of all improvements.
(8) If the Township Engineer fails to send or provide the list and report as requested by the obligor pursuant to Section 11 2-25A(5) of this ordinance within 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.
(9) If the Township Council 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 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 Section 112-25A(l) of this ordinance; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
(10) In the event that the obligor has made a cash deposit with the Township or Planning Board as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this section 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.
(11) If any portion of the required improvements is rejected, the Township Council 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.
(12) Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the Township council or the Township Engineer.
(13) The obligor shall reimburse the Township for all reasonable inspection fees paid to the Township Engineer for the foregoing inspection of improvements; provided that the Township 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 St of the cost of improvements, which cost shall be determined pursuant to section 15 of P.L. 1991 c.256 (C-40:55D-53).
(14) 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 (C. 40:55D-38), the provisions of this section shall be applied by stage or section.
(15) The Township shall not require that a maintenance guarantee required pursuant to section 41 of P.L. 1975, c.291 (C. 40:55D-53) be in cash or that more than 10% of a performance guarantee pursuant to that section be in cash. A developer may, however, provide at his option some or all of a maintenance guarantee in cash, or more than 10% of a performance guarantee in cash.
(16) The cost of the installation of improvements for the purposes of section 41 of P.L. 1975, C.291 (C. 40:55D-53) shall be estimated by the Township Engineer based on documented construction costs for public improvements prevailing in the general area of the Township. The developer may appeal the Township Engineer's estimate to the Township Council. The Township council shall decide the appeal within 45 days of receipt of the appeal in writing by the Township Clerk. After the developer posts a guarantee with the Township based on the cost of the installation of improvements as determined by the Township council, he may institute legal action within one 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.
(17) The Township Council shall, for the purposes of section 41 of P.L. 1975, C.291 .40:55D-
53),accept a performance guarantee or maintenance guarantee which is an irrevocable letter of credit if it:
(a) 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 section 41 of P.L. 1975, c.291 (C. 40:55D-53);
(b) is issued by a banking or savings institution authorized to do and doing business in this State;
(c) Is for a period of time of at least one year; and
(d) Consistent with the furnishing of an irrevocable letter of credit, there shall be provided by the obligor, an irrevocable letter of credit in the form set forth in Appendix A hereto. Obligor must use the pre-printed form which is available from the Township Engineering Department. The Township Attorney may revise the pre-printed form from time to time, but such revisions may not alter the substance of such form unless authorized by an ordinance implementing the revision. [Amended 10/14/97 by Ord. No. 2037]
(18) If the Planning Board includes as a condition of approval of an application for development pursuant to P.L. 1975, c.291 (C. 40:55D-1 et seq.) the installation of street lighting on a dedicated public street connected to a public utility, then upon notification in writing by the developer to the Planning Board and Township Council that (1) the street lighting on a dedicated public street has been installed and accepted for service by the public utility and (2) that certificates of occupancy have been issued for at least 50% of the dwelling units and 50% of the floor area of the nonresidential uses on the dedicated public street or portion thereof indicated by section pursuant to section 29 of P.L. 1975, c.291 40:55D-38), the Township shall, within 30 days following receipt of the notification, make appropriate arrangements with the public utility for, and assume the payment of, the costs of the street lighting on the dedicated public street on a continuing basis. Compliance by the Township with the provisions of this section shall not be deemed to constitute acceptance of the street by the Township.
APPENDIX A SECTION 112-25A.(17)(d)
IRREVOCABLE LETTER OF CREDIT
NAME OF BANK
ADDRESS OF BANK
DATE 199_
Franklin Township
Municipal Building
475 DeMott Lane
Somerset NJ 08873
Gentlemen and Ladies:
1. We hereby establish our Irrevocable Letter of Credit No._____in your favor for the account of [Name and Address of Developer] (hereinafter referred to as the Developer) in the principal amount of up to (Dollars Amount] for a period of one (1) year from the date of this Letter of Credit, unless automatically renewed as provided in Paragraph 2 below (hereinafter such date, as extended, shall be referred to as the Expiration Date), payable by your draft on us at sight in the form of Exhibit A attached hereto, to be accompanied by the original Letter of Credit and your signed statement, executed by the Mayor and attested to by the Municipal Clerk, certifying that the Developer has not completed those improvements set forth in the approved Engineer's estimate attached hereto as Exhibit B, within three (3) years from the date of this Letter of Credit, or within such further time as may be granted pursuant to resolution of the Franklin Township Planning Board or by the Franklin Township Municipal Council under that certain Developer's Agreement dated [supply date] between the Township of Franklin and the Developer (hereinafter referred to as the Developer's Agreement) . This Letter of Credit is issued in support of a project known as (Name of Project and descriptive Information].
2. This Letter of Credit shall be automatically extended for additional periods of one (1) year each from the then present Expiration Date unless thirty (301 days prior to such Expiration Date we notify the Municipal Clerk in writing by registered or certified mail at the above address that we elect not to renew this Letter of Credit for such additional period. Upon receipt by you of such notice you may draw on us by means of your sight draft for the full amount of this Letter of Credit, accompanied by your written certification that the proceeds of your draft will be held by you and expended only to satisfy any loss, liability, cost, claim or expense which you may incur because of Developer's failure to timely complete the improvements described in Exhibit B referenced above.
3. It is a condition of this Letter of Credit that it shall be reduced time to time upon certification to us from the Township Engineer authorized by the resolution of the Township council and attested to by the Municipal Clerk stating that portions of the required improvements have been satisfactorily completed in accordance with the terms of the Planning Board resolution and/or the Developer's Agreement (and setting forth the specific line items that have been completed and the amount that may be released) and by presentation of the original Letter of credit for proper endorsement of each reduction or reissuance of a new reduced Letter of Credit.
4. Any sight draft drawn under and in compliance with the terms of this Letter of Credit shall be fully honored upon presentation, to its prior Expiration Date, at our office located at [Name and Address of Office] (or any successor office). If the drawing is made by you hereunder at or prior to 11:00 am, New York City time, on a business day, and provided that such drawing and the documents presented in connection therein conform to the terms and conditions hereof, payment shall be made of the amount specified in immediately available funds, on the same business day. If the drawing is made by you hereunder after 11:00 am, New York City time, on a business day, and provided that such drawing and the documents presented in connection therewith conform to the terms and conditions hereof, payment shall be made of the amount specified, in immediately available funds, on the next succeeding business day.
5. The certification by the Township of Franklin that the Developer has defaulted in the performance of its obligation under the Engineer's Estimate and/or Developer's Agreement referred to above, shall be conclusive upon us, as well as the Developer, and shall be sufficient to cause us to honor, forthwith, any sight drafts presented by you. As to the Developer, it is the intended purpose of this paragraph to stop it from seeking to prevent payment pursuant to the terms of this Letter of Credit and we shall make such payment without determination of conditions or facts pertaining to the obligations of Developer under the Planning Board resolution and/or the Developer's Agreement. 1997
6. Upon payment as provided in paragraph 4 above of the amount specified in a sight draft drawn hereunder, we shall be fully discharged of our obligations under this Letter of Credit with respect to such sight draft.
7. Under no circumstances will this Letter of Credit be extended beyond three (3) years from the date hereof. Your acceptance of this Letter of Credit will constitute your agreement to repay us any funds paid by us to you hereunder and not used by you in satisfaction of or reimbursement for any liability, loss, cost, claim or expense of any nature incurred by you as a result of the failure of Developer to complete the above described improvements.
8. This Letter of credit is subject to the Uniform Customs and Practice for documentary Credits (1983 Revision), International Chamber of Commerce Publication No. 400 (The Uniform Customs), and, as to matter not governed by the Uniform Customs, shall be governed by and construed in accordance with the laws of the State of New Jersey including, without limitation, Article 5 of the Uniform Commercial Code as in effect in the State of Now Jersey.
9. This Letter of Credit set forth in full our undertaking, and such undertaking shall not in any way be modified, amended,, amplified or limited by any unwritten communications or by reference to any documents, instruments or agreements referred to herein (including, without limitation, the Letter of Credit and Reimbursement Agreement) , except only the certificate, sight draft, letters and Exhibits referred to herein; and any such reference shall not be deemed to incorporate herein by reference any documents, instruments or agreements.
10. we hereby certify that we are banking or saving institution authorized to do business in the State of New Jersey.
Very truly yours,
NAME Of BANK
Vice President
This Letter of Credit is accepted and approved by the Developer.
