Before the filing of final subdivision plats, or recording of minor subdivision deeds, or as a condition of final site plan approval, or as a condition to the issuance of a zoning permit, the developer must furnish a performance guarantee in amount not to exceed 120% of the total cost to the Township, for installation of only those improvements required by an approval or developer's agreement, ordinance, or regulations to be dedicated to a public entity that have not yet been installed, which cost shall be determined by the Township Engineer in accordance with N.J.S.A. 40:55D-53.4, including the following improvements shown on the approved plans or plat: streets; pavement; gutters; curbs; sidewalks; streetlighting; street trees; surveyor's monuments; water mains; sanitary sewers; community septic systems; drainage structures; public improvements of open space; grading necessitated by the aforementioned improvements; privately owned perimeter buffer landscaping; provided, however, that a developer may choose to post a separate performance guarantee for such landscaping.

The form of the performance guarantee is subject to the approval of the Township Attorney.

Subject to N.J.S.A. 40:55D-1 et seq., as amended and supplemented, all rights in the performance guaranty, including the right to any interest earned on any deposits, shall belong to the Township of Toms River.

Notwithstanding the requirements of Subsection A(1) and (6), when a letter of credit which has been previously accepted as a performance guaranty is about to expire, it may either be renewed administratively by the Township Comptroller, provided that all pertinent requirements are met by the applicant, or may be drawn upon by the Township if the obligor fails to furnish a new letter of credit which complies with the provisions of this chapter not less than 30 days in advance of the expiration date of the letter of credit or such longer period of time in advance thereof as is stated in the letter of credit.

In the event of default, the principal and any interest shall be used for the benefit of the Township in the completion of the improvements.

Irrevocable letters of credit. The Township of Toms River shall accept as a performance or maintenance guaranty an irrevocable letter of credit if it constitutes an unconditional payment obligation of the issuer running solely to the municipality for an expressed initial period of time in the amount required pursuant to § 348-7.1A(1) above; is issued by a banking or savings institution authorized to do and doing business in the State of New Jersey; is for a period of time of not less than one year; and permits the municipality 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 30 days or more in advance of the expiration date of such letter of credit or such longer period in advance thereof as is stated in the letter of credit.

Appeal of performance bond estimate. The cost of installation of improvements for purposes of this section shall be estimated by the Municipal Engineer based upon documented construction costs for public improvements prevailing in the general area of Toms River Township. The developer may appeal this estimate to the governing body and the governing body shall decide such appeal within 45 days of the receipt of the appeal, in writing, by the Municipal Clerk. In the event that a developer posts a guaranty with a municipality based upon the cost of installation of improvements as determined by the governing body, he shall institute legal action within one year of such posting or order to preserve the right to a judicial determination as to fairness and reasonableness of such guaranties.

The reasonable cost of the improvements not installed, and, upon receipt of the proceeds thereof, the municipality shall install such improvements; or

The completion of all required improvements.

Upon substantial completion of all required street improvements and the appurtenant utility improvements, and the connection of the same to the public system, the obligor may request of the Township Committee, in writing, by certified mail addressed in care of the Township Clerk, that the Municipal Engineer, in accordance with the estimate appended to the performance guaranty posted, prepare a list of all uncompleted or unsatisfactorily completed improvements and shall send a copy of such notice to the Municipal Engineer. The request shall indicate which improvements have been completed and which improvements remain incomplete in the judgment of the obligor. Thereupon, the Municipal Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Township Committee and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request. The list prepared by the Municipal Engineer shall state, in detail, in 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 and remedy for the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report by the Municipal Engineer shall identify each improvement determined to be complete and satisfactory, together with a recommendation as to the amount of any reduction to be made in the performance guaranty relating to the complete and satisfactory improvements.

If the Township Engineer fails to send or provide such list or report as requested by obligor hereunder within 45 days from the receipt of such request, the obligor may apply to the Superior Court in a summary manner for an order compelling the Municipal Engineer to provide the list or report within a stated time and the cost of the application, including reasonable attorney's fees, may be awarded to the prevailing party.

The Township Council, by resolution, shall either approve the bonded improvement(s) determined to be complete and satisfactory by the Township Engineer, or reject any or all of the bonded improvement(s) 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 and the safety and stabilization guarantee relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Township Engineer and appended to the performance guarantee.

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 and safety and stabilization guarantee, with respect to those bonded improvements, except for that portion adequately sufficient to secure completion of correction of the improvements not yet approved; provided that 30% of the amount of the total performance guarantee and safety and stabilization guarantee posted may be retained to ensure completion and acceptability of all improvements. The safety and stabilization guarantee shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction.

For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate which formed the basis of the performance guarantee and appended to the performance guarantee pursuant to Subsection A of this section, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the municipality may retain 30% of the amount of the total performance guarantee and "safety and stabilization guarantee" to ensure completion and acceptability of bonded improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a "temporary certificate of occupancy guarantee" has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the municipality below 30%.