A performance guaranty estimate shall be prepared by the Borough Engineer setting forth an itemized list of all required improvements as fixed by the Planning Board and the estimated cost of providing same. The required improvements may include streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyors monuments, water mains, culverts, storm drains, sanitary sewers, drainage structures, soil erosion and sediment control devices, public improvements, and in the case of site plans other on-site improvements and landscaping. The amount of the performance guaranty shall not exceed 120% of the estimated cost of installation of all required improvements.
The developer shall present two copies of the performance guaranty in an amount equal to the amount of the approved performance guaranty estimate for approval as to form and execution by the Planning Board Attorney.
The performance guaranty shall be the approved performance guaranty estimate and a performance bond in which the developer shall be principal and an acceptable surety company licensed to do business in the State of New Jersey and cash which shall be deposited with the Borough of Bradley Beach by payment to the Borough Chief Financial Officer, shall be surety. The cash deposit shall not exceed 10% of the performance guaranty estimate. The Borough Chief Financial Officer shall issue a receipt for such cash deposits and shall cause the same to be deposited in a bank named by and at the risk of the developer in the name of the Borough of Bradley Beach, to be retained as security for completion of all requirements and to be returned to the developer on completion of all required work and expiration of the period of maintenance guaranty or in the event of default on the part of the developer 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 his obligation and shall be binding and conclusive upon the surety and the principal.
Prior to the release of the performance guaranty, a maintenance guaranty not exceeding 15% of the cost of the improvement shall be posted with the Borough. The maintenance guaranty shall be in cash or equivalent security. The term of the maintenance guaranty shall not exceed two years after final acceptance of improvements.
The approved performance guaranty estimate shall fix the requirements of maintenance of the utilities and improvements to be installed and completed by the developer.
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 inspections shall be the responsibility of the developer, and he shall deposit with the Borough Chief Financial Officer additional sums upon notice from the Borough Engineer. The Borough Chief Financial Officer shall return any balance of the inspection deposit to the developer upon expiration of the maintenance period.
A final inspection of all improvements and utilities will be made to determine whether the work is satisfactory and in agreement with the approved final plat drawings and the Borough specifications. The general conditions of the site shall also be considered. Upon a satisfactory final inspection report, action will be taken to release the performance guaranty covering such improvements and utilities.
Inspection by the Borough of the installation of improvements and utilities by the developer 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.
After completing the construction of the public improvements covered by the performance guaranty, the developer 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 Mayor and Council on the condition of the work and recommend that the performance guaranty be released, extended or declared in default, in whole or in part.
The Mayor and Council shall by resolution release or declare in default each performance guaranty. Such performance guaranty shall run for a period to be fixed by the Mayor and Council, but in no case for a term of more than three years. However, on the request of the owner and accompanying consent of the surety, if there be one, the Mayor and Council may by resolution extend the term of such performance guaranty for an additional period not to exceed three years. The amount of the performance guaranty may be reduced by the Mayor and Council by resolution when portions of the required improvements have been installed and have been inspected and approved by the Borough Engineer. If any improvements have not been installed in accordance with the performance guaranty, the obligor and surety shall be liable thereon to the Borough for removing any work improperly completed; and upon receipt of the proceeds thereof, the Borough shall remove and/or install such improvements. The Borough shall also have all other remedies as may be lawfully available.
