Allenhurst City Zoning Code
§ 26-8.2
Performance and Maintenance Guarantee for Major Subdivision.
[Ord. 6/26/79 § 802]
a.
Performance Guarantee Estimate. No final subdivision plat shall be approved by the Board until the satisfactory completion and performance of all such required improvements (Section 26-7) have been certified to the Board by the Borough Engineer unless the subdivision owner shall have filed with the Borough a performance guarantee sufficient in the amount to cover the cost of all such improvements in uncompleted portions thereof as estimated by the Borough Engineer and assuring the installation of such uncompleted improvements on or before an agreed date provided that the agreed date shall in no case exceed three (3) years from the initial filing of the performance guarantee with the Borough.
1.
A performance guarantee estimate shall be prepared by the Borough Engineer setting forth all requirements for improvements as fixed by the Board, and their estimated cost. The Board of Commissioners shall pass a resolution either approving or adjusting this performance guarantee estimate and resolution to the subdivider for use in obtaining and posting a performance guarantee.
2.
The approved performance guarantee estimate shall fix the requirements of maintenance of the utilities and improvements to be installed and completed by the subdivider. A surety company or cash bond meeting the requirements herein above set forth may be furnished to secure the maintenance guarantee or the performance bond may be styled or amended to provide such security in reduced amount in keeping with the requirements.
b.
Approval by the Borough Attorney.
1.
The subdivider shall present two (2) copies of the performance guarantee in an amount equal to the amount of the approved performance guarantee estimate for approval as to form and execution by the Borough Attorney.
2.
The Borough Attorney shall notify the Secretary of the Board prior to the Board meeting that the performance guarantee is properly executed and can be added to the agenda.
c.
Bonding and Cash Requirements.
1.
The performance guarantee shall be the approved performance guarantee estimate, and as surety a performance bond in which the subdivider shall be principal, the bond to be provided by an acceptable surety company licensed to do business in the State of New Jersey, or cash, or a certified check shall be deposited with the Borough by payment to the Borough Treasurer. The Borough Treasurer shall issue its receipt for such cash deposits and shall cause the same to be deposited in a bank named by the Borough to be retained as security for completion of all requirements and to be returned to the subdivider on completion of all required work and expiration of the period of maintenance guarantee or, in the event of a default on the part of the subdivider, to be used by the Borough to pay the cost and expense of obtaining completion of all requirements. Every bond, whether cash or surety, shall contain a clause to the effect that a determination by the Borough Engineer that the principal has defaulted in the performance of the obligation shall be binding and conclusive upon the surety and the principal.
2.
Ten (10%) percent of the amount of the approved performance guarantee estimate shall be deposited by the subdivider in cash with the Borough. The remaining ninety (90%) percent may be in cash or surety bond. In the event of default, the ten (10%) percent fund herein mentioned shall be first applied to the completion of the requirements and the cash or the surety bond shall thereafter be resorted to, if necessary, for the completion of the requirements. The cash or surety bond may recite the foregoing provisions. The Borough Engineer's determination that the principal has defaulted in his obligation shall be binding and conclusive upon the principal.
d.
Inspection and Tests.
1.
All improvements and utility installations shall be inspected during the time of their installations under the supervision of the Borough Engineer to insure satisfactory completion. The cost of the inspection shall be the responsibility of the subdivider and he shall deposit with the Borough Treasurer for placement in a special trust account, a sum equal to five (5%) percent of the amount of the performance guarantee estimate of the cost of public improvements to be built in the subdivision to be applied to payment of inspection costs. If inspection costs exceed such fund, the subdivider shall deposit with the Borough Treasurer additional sum upon notice from the Borough Engineer. The inspection fee shall in no case be less than one hundred ($100.00) dollars. The Borough Treasurer shall return any balance of the inspection deposit to the subdivider upon expiration of the maintenance bond together with the paid invoices for all expenses charged.
2.
In no case shall any paving work (including prime and seal coats) be done without permission from the Borough Engineer's office. At least two (2) days notice shall be given to the Borough Engineer's office prior to any such construction, so that he or a qualified representative may be present at the time the work is to be done.
3.
The Borough Engineer's office shall be notified after each of the following phases of the work has been completed so that he or a qualified representative may inspect the work. The subdivider or his agent shall notify the Borough Engineer at least two (2) days in advance of the time he anticipates the work will be ready for inspection.
4.
A final inspection of all improvements and utilities will be started within ten (10) days of notification by the subdivider to determine whether the work is satisfactory and in agreement with the approved final plat drawing and the Borough specifications. The general condition of the site shall also be considered. Upon a satisfactory final inspection report, action will be taken to release or declare in default the performance guarantee covering such improvements and utilities.
5.
Inspection by the Borough of the installation of improvements and utilities by the subdivider shall not operate to subject the Borough to liability for claims, suits or liability of any kind that may at any time arise because of defects or negligence, during construction or at any time thereafter; it being recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the subdivider and his contractors, if any.
6.
After completing the construction of the public improvements covered by the performance guarantee, the subdivider shall prepare a set of the approved Public Improvement and Utility Plans and the Profiles amended to read "as constructed" and apply to the Borough Engineer for final inspection of the work. The Borough Engineer shall report to the Board of Commissioners on the condition of the work and recommend that the performance guarantee be released, extended or declared in default.
e.
Release. The Board of Commissioners shall, by resolution, release or declare in default each performance guarantee. Such performance guarantee shall remain in effect until released by the Board of Commissioners. The amount of performance guarantee may be reduced by the Board of Commissioners by resolution when portions of the required improvements have been installed and have been inspected and approved by the Borough Engineer, provided, however, that no such reduction shall be approved until the Borough Engineer shall have certified the estimated cost of completing any remaining required improvements. If any improvements have not been installed in accordance with the performance guarantee, the obligor and surety shall be liable thereon to the Borough for the reasonable cost over and above the ten (10%) percent cash deposit on the improvements not installed and, upon receipt of the proceeds thereof, the Borough shall install such improvements. The Borough shall also have all other remedies as may be lawfully available.
f.
Conditions for Acceptance of Improvements. The approval of any plat under this chapter by the Board shall in no way be construed as acceptance of any street or drainage system, or any other improvement required by this chapter, nor shall such plat approval obligate the Borough in any way to maintain or exercise jurisdiction over such street and drainage system or other improvement. No improvement shall be accepted by the Board of Commissioners unless and until all of the following conditions have been met.
1.
The Borough Engineer shall have certified in writing that the improvements are completed and that they comply with the requirements of this chapter.
2.
The final plat shall have been approved by the Planning Board.
3.
The subdivider shall have filed with the Board of Commissioners a maintenance guarantee in an amount equal to not more than fifteen (15%) percent of the cost improvements or the cost of the original installation of the improvements and shall run for a period of two (2) years. The guarantee shall be applied against defects arising from materials or workmanship. The procedures and requirements governing such maintenance guarantee shall be identical with the procedures and requirements for a performance guarantee. The requirements for a maintenance guarantee may be waived by the Board of Commissioners only if the Borough Engineer has certified that the improvements have been in satisfactory continuous use for not less than two (2) years from the date the Borough Engineer certified completion of such improvements in accordance with the provisions of Section 26-7 of this chapter.