Before signing and recording of final subdivision plats, the applicant shall have installed, under the inspection of the Township Engineer, all improvements required unless the applicant has posted and the governing body accepted a performance guarantee providing for such installation. The amount of the guarantee shall be determined by the Township Engineer, not to exceed 120% of the estimated cost of constructing the improvement, including: streets, curbs, grading, pavement, gutters, sidewalks, streetlighting, surveyor's monuments, water mains, culverts, storm sewers, sanitary sewers, drainage structures, soil erosion and sediment control devices, public improvements of open space, traffic street signage, pavement markings, shade trees 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.

In addition to the posting of performance guarantees for the installation of shade trees, the owner or subdivider shall post a sum of money into a Township Shade Tree Fund. The amount to be posted shall be calculated pursuant to a schedule recommended by the Manalapan Shade Tree Committee in January and July of every year and as established by resolution of the Township Committee. This money shall be utilized by the Township, upon the advice of the Shade Tree Committee, for the maintenance, relocation and replacement of said trees and such other trees as may be located in the Township.[1]

A minimum of 10% of the performance guarantee must be posted in cash.

The remaining 90% of the performance guarantee amount shall be posted in cash, certified check, irrevocable standby letter of credit or surety bond issued by an insurance or bonding company licensed to do business in the State of New Jersey and acceptable to the Township Attorney and Finance Director, in the favor of the Township.

If the applicant elects to post an irrevocable standby letter of credit, it must be written in the following form. [2]

All guarantees shall provide for construction of the required improvements within two years of the date of their posting or such other time as determined by the municipal agency. This time period may be extended by the governing body, in the form of a resolution granting such extension provided the municipal agency has, if necessary, extended the period of protection pursuant to N.J.S.A.40:55D-52a. As a condition of this extension the guarantee amount may be adjusted to 120% of the estimated cost to construct the improvements at that time and additional inspection fees deemed necessary by the municipal agency shall be paid.

All performance guarantees shall remain in effect until formally released by the governing body by a resolution and receipt of an approved maintenance guarantee as required.

All guarantees, sureties, and lending institutions are subject to the approval of the Municipal Attorney and the governing body.

All site improvements shall be inspected during the time of their installation under the supervision of the Township Engineer. Prior to the start of construction of any improvements, the applicant shall deposit by cash or certified check with the Township Clerk the applicable inspection fee required by Article III. In addition, a preconstruction meeting shall be held with the Township Engineer, the developer, site superintendent, and all prime contractors, as required.

In no case shall installation of underground facilities or any paving work be conducted without permission from the Township Engineer.

The Engineer's office shall be notified two working days prior to commencement of each of the following phases of construction so that the Engineer or his designated representative may be present to inspect the work.

Any improvement installed contrary to the plan or plat approval by the Township or Township design standard shall constitute just cause to void the municipal approval.

Any improvements installed without notice for inspection (as determined by the Township Engineer) shall constitute just cause for:

Inspection by the Township of the installation of improvements and utilities shall not operate to subject the Township 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 owners and his contractor, if any.

Prior to the signing and recording of final major subdivision plats and as a condition of final site plan approval in the case of a site plan, the developer shall enter into an agreement with the governing body. This agreement shall be of a form that is acceptable to the Municipal Attorney and one in which the developer agrees to abide by the terms and conditions of approval, construct the required improvements in accordance with the approved plans, agree to maintain the constructed improvements including but not limited to, payment of streetlighting charges, snow removal, maintenance of storm drainage, sewer and water facilities. The developer also shall agree that in the event the improvements are not maintained, the Township can utilize the cash portions of the performance guarantees to immediately attend to items presenting a safety hazard.

The developer shall reimburse the Township for the cost and expense of the developer's agreement and filing of the developer's agreement with the County Clerk in accordance with the applicable professional contract, prior to execution of same.

Request by obligor for list of uncompleted improvements; as-built plans; inspection.

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 pursuant to § 95-10.1A(1) of this chapter. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Municipal Engineer. Upon adoption of the resolution by 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 30% of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

Failure of Engineer to provide list and governing body to approve or reject improvements.

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.

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.

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

The obligor shall reimburse the municipality for all reasonable inspection fees paid to the Municipal 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 $500 or 5% of the cost of improvements estimated pursuant to the Municipal Land Use Law. 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 Municipal 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 developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Municipal Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit, nor shall the developer proceed with any work for which an inspection is required until sufficient funds are on deposit.

In the event that final approval is by stages or sections of development pursuant to N.J.S.A. 40:55D-38, the provisions of this subsection shall be applied by stage or section.

Any release of performance guarantees will be conditioned upon the provision of a maintenance guarantee to be posted with the governing body, in an amount equal to 15% of the performance guarantee amount. The term of the maintenance guarantee shall be two years.

No performance guarantees shall be released if the developer shall be in default of its developer's agreement in the payment of escrow fees or payment of taxes.