The performance guarantee shall be in favor of the Borough in an amount not to exceed 120% of the cost of installation, which cost shall be determined by the Borough Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4, for which the approving authority may deem necessary or appropriate, including streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyors monuments, as shown on the final map and required by the Map Filing Law, (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 and, in the case of site plans only, other on-site improvements and landscaping.

The Borough 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.

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

The remaining 90% of the performance guarantee amount may be posted in cash, certified check, irrevocable letter of credit or surety bond in the favor of the Borough.

The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough 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 Borough Engineer and appended to the performance guarantee pursuant to § 94-7.1 above. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough 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 total performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to § 94-7.1, including any contingency factor applied to the cost of installation. If the sum of the approved improvements would exceed 70% of the total amount of the performance guarantee, then the Borough may retain 30% of the amount of the total performance guarantee to ensure completion and acceptability of all improvements, as provided above.

If the applicant elects to post a surety bond, it shall be issued by an insurance or bonding company licensed to do business in New Jersey and acceptable to the Borough Attorney.

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 Borough Council, 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 shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation determined by the Borough Engineer as of the time of the passage of the resolution.

All performance guarantees shall remain in effect until formally released by the Borough Council 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 Borough Attorney and the Borough Council.

Upon substantial completion of 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 Borough Council in writing, by certified mail addressed in care of the Borough Clerk, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to § 94-7, above, 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 Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Concurrent with this request the obligor shall forward a set of as-built plans for the following.

Thereupon the Borough Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Borough Council, and shall simultaneously send a copy thereof to the obligor not later than 45 days after the receipt of the obligator's report.

The list prepared by the Borough 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 Borough 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 Borough Engineer and appended to the performance guarantee pursuant to § 94-7.1, above.

The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough Engineer, or reject any or all of the 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 Borough Engineer and appended to the performance guarantee pursuant to § 94-7.1 above. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the Borough 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.

If the Borough Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsections A and B, above, within 45 days from the receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough Engineer to provide the list and report within a state period of time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party. If the Borough Council fails to approve or reject the improvements determined by the Borough 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 Borough 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 Borough Engineer and appended to the performance guarantee pursuant to § 94-7.1, and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

In the event that the obligor has made a deposit with the Borough or approving authority 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 in 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 above, shall be followed.

Any release of performance guarantees will be conditioned upon the provision of a maintenance guarantee to be posted with the Borough Council, in an amount equal to 15% of the performance guarantee amount and in a form approved by the Borough Attorney.

The maintenance guarantee shall state that all improvements will remain in satisfactory condition for a period of at least two years.

All site improvements shall be inspected during the time of their installation under the supervision of the Borough Engineer. Prior to the start of construction of any improvements, the applicant shall deposit by cash or certified check with the Borough Clerk the applicable inspection fee required in this section.

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

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

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

Any improvements installed without notice for inspection shall constitute just cause for:

Inspection by the Borough of the installation of improvements and utilities shall no operate 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 owners and his contractor, if any.

Inspection fees. The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements; provided that the Borough may require of the developer a deposit for the inspection fees.