West Long Branch City Zoning Code
§ 18-13.26
Performance Guarantee.
[Ord. #513]
a.
Prior to the signing of a final plat, issuance of a Development Permit, and/or the commencing of any clearing, grading or installation of improvements, the developer shall have filed with the Borough a performance guarantee.
1.
The guarantee shall be sufficient in amount to equal the total cost to the Borough as estimated by the Borough Engineer, of constructing those on-site, off-site and off-tract improvements necessary to protect adjacent property and the public interest in the event development of the subdivision or site were not completed. Such improvements shall include, but are not limited to grading; surveyor's monuments; drainage facilities necessary to protect off-tract areas from flooding; erosion and sedimentation control facilities; required landscaping, buffers, screening and fencing; all streets, curbs, gutters, culverts, storm sewers, sanitary sewers, water mains, sidewalks, street lighting, shade trees, and others as may be required. The applicant shall provide preliminary estimated types and quantities of improvements to be reviewed and verified by the Borough Engineer.
2.
Such guarantee shall assure the installation of such improvements on or before an agreed date, guarantee the completion of all improvements without damage to or interference with adjacent properties or public facilities, and hold the Borough Council and the municipal agency and their employees and agents harmless with respect to any acts of the developer, its agents, successors, or assigns.
3.
The total estimated cost to the Borough of constructing all improvements shall be based upon the estimated contract construction costs, which would prevail upon expiration of the guarantee period, and shall also include appropriate allowances for contract related costs such as engineering, legal, financial, and other usual costs, which shall be estimated to be 20% of the estimated contract construction costs. (Performance guarantee equals 120% of cost of improvement installation.)
4.
Such performance guarantee may be in the form of cash, certified check, negotiable securities, a performance bond issued by a bonding company or surety company approved by the Borough Council and in form acceptable to the Borough Attorney, or any other type of surety acceptable to the Borough Council and in form acceptable to the Borough Attorney provided that at least 10% of the performance guarantee shall be in the form of cash or certified check drawn on an insured banking institution in the State of New Jersey; provided, however, that all rights to said 10% portion including the right to interest with dividends, be assigned to the Borough in a form of assignment acceptable to the Borough Attorney for a period of the bond and that the principal amount without interest be returned to the developer upon completion of the bonded improvements, or in the event of default, any interest and principal shall be used by and for the benefit of the Borough in the completion of said improvements. The surety company providing the performance guarantee shall be approved and listed on Circular 570 (as amended) from the U.S. Department of Treasury.
b.
If at the time the performance guarantee is filed with the Borough the developer has not also filed with the Borough proof that any other necessary performance guarantees have been filed and accepted by governmental bodies, authorities, public utility companies, and private utility companies other than the Borough which have jurisdiction over improvements in the site or subdivision, the amount of the performance guarantee shall be increased to reflect the cost of such improvements.
c.
All performance guarantees shall run to and be in favor of the Borough of West Long Branch in the County of Monmouth.
d.
The performance guarantee shall be approved by the Borough Attorney as to form, sufficiency and execution and shall be subject to the following conditions:
1.
Such performance guarantee shall run for a period to be fixed by the Borough Council, but, in no case for a term longer than the period of final approval (normally two years) set by N.J.S.A. 40:55D-1 et seq. or for the installation of all or any portion of the improvements, whichever is shorter.
2.
The time allowed for installation of improvements for which the performance guarantee has been provided may be extended by resolution of the Borough Council provided that, if required, the period of final approval has been extended by the municipal agency in accordance with N.J.S.A. 40:55D-1 et seq. provided further that:
(a)
Such extension shall not exceed one year; and
(b)
There shall not be more than three such extensions; and
(c)
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 of all uncompleted improvements as determined by the Borough Engineer as of the time of the passage of the resolution.
(d)
As a condition or as part of any such extension, the amount of inspection fees may be increased to cover the additional cost to the Borough for the delay in completion of the improvements as determined by the Borough Engineer if the balance of the original inspection fee is deemed by the Borough Engineer to be insufficient. The developer shall pay the additional fee of 5% of the cost of remaining items to be inspected based on an estimate prepared by the Borough Engineer. Any of these additional inspection fees remaining after the approval of 100% of the improvements shall be refunded to the developer.
3.
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 Municipality for the reasonable cost of the improvements not completed or corrected and the Municipality may either prior to or after the receipt of the proceeds thereof complete such improvements.
e.
If, during the period of the performance guarantee, the developer fails to prosecute the work of completing the improvements so as not to create hazards to life, health, property or public safety, the Borough may, after five days' notice perform or cause to be performed, any necessary corrective work and deduct the cost thereof from the 10% cash or certified check portion of the guarantee. Upon notice of any such deduction, the developer shall, within 10 days, restore the full 10% cash balance or his performance guarantee will be held to be void and the Borough may take action as if final plat approval had not been obtained.
f.
Upon completion and/or substantial completion of all required improvements as defined in paragraph a above (except the final application of bituminous concrete [wearing surface], street shade trees, concrete monuments, and iron pins), and the connection of applicable improvements to the public system, the obligor may notify the Borough Council in writing, by certified mail addressed in care of improvements and shall send a copy thereof to the Borough Engineer. The developer's or obligor's design professional shall prepare and certify unto the Borough a detailed list of completed and/or substantially completed improvements having off-site, on-tract, and/or off-tract effect plus on-site improvements. The detailed list shall be consistent with Schedule "A" of the performance bond estimate originally prepared by the Borough Engineer for the referenced project. Thereupon the Borough Engineer shall inspect all improvements of which such notice has been given and shall file a detailed report, in writing, with the Borough Council, indicating either approval, partial approval or rejection of such improvements with a statement of reasons for any rejection. The cost of the improvements as approved or rejected shall be set forth.
g.
The Borough Council shall either approve, partially approve, or reject the improvements, on the basis of the report of the Borough Engineer and shall notify the obligor in writing, by certified mail, of the contents of said report and the action of said approving authority with relation thereto, not later than 65 days after receipt of the notice from the obligor of the completion of the improvements. Where partial approval is granted, the obligor shall be released from all liability pursuant to its performance guarantee, except for that portion adequately sufficient to secure provisions of the improvements not yet approved; provided that 30% of the amount of the performance guarantee posted may be retained to ensure completion of all improvements. Failure of the Borough Council to send or provide to constitute approval of the improvements and the obligor and surety, if any, shall be released from all liability pursuant to such performance guarantee for such improvements.
h.
If any portion of the required improvements are rejected, the Borough Council may require the obligor to complete such improvements and, upon completion, the same procedure of notification, as set forth in this section shall be followed. Performance guarantee for the remaining improvements not yet approved (30% minimum) shall be approved by the Borough Attorney as to form, sufficiency, and execution, and shall run for such additional period as it shall be deemed sufficient or until acceptance of public improvements by the Borough.
Should the Borough Council approve or partially approve the reduction request, the 10% cash or certified portion of the performance guarantee provided by the obligor shall remain on deposit with the Borough until such time all improvements are complete and accepted by the Municipality. The performance guarantee for the remaining improvements not yet approved (30% minimum) plus the 10% cash or certified portion of the performance guarantee provided by the obligor shall be deemed adequate to cover that partial reduction granted for which the obligor is released from liability pursuant to the performance guarantee.
i.
Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the Borough Council or the Borough Engineer.
j.
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 Municipality may require of the developer, a deposit for all or a portion of the reasonably anticipated fees to be paid to the Borough Engineer for such inspection and, provided further, that such reasonably anticipated fees are hereby determined and set forth in this Chapter.