[Amended 12-21-2004 by Ord. No. 04-37]

A. Guarantees required. Prior to the recording of a final subdivision plat or as a condition of final site plan approval or as condition to the issuance of a zoning permit pursuant to § 285-40 of the Pohatcong Township Code, the governing body shall require and accept in accordance with the standards of this chapter for the purpose of assuring the installation and maintenance of improvements the following:

(1) Performance guarantee. A performance guarantee in favor of the Township in an amount not to exceed 120% of the cost of installation of improvements which are being offered for dedication to the Township, including streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, monuments, water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, utilities, erosion and sedimentation control devices and public improvement of open space, whether on tract or off tract. The term of the guarantee shall be for a period not to exceed 18 months with a provision that permits the Township to draw upon the guarantee if it is not renewed at least 30 days in advance of the expiration date. With the consent of the principal, the governing body may extend the term of the performance guarantee for an additional 18 months. However, if an applicant has posted a performance guarantee for nonessential improvements as set forth in this chapter, the nonessential improvements must be completed within one year of the date of posting of the guarantee. The performance guarantee shall not be released until the applicant has posted a maintenance guarantee which has been approved by the governing body.

(2) Maintenance guarantee. A maintenance guarantee to be posted with the governing body upon satisfactory completion of all improvements, to run for a period not to exceed two years, in an amount not to exceed 15% of the total cost of the improvement for the purpose of ensuring that the applicant maintains the roadway or facilities in question. The maintenance guarantee shall include only those improvements which are being offered for dedication to the Township. The guarantee shall contain a provision that permits the Township to draw upon the guarantee if required maintenance has not been performed or if the guarantee is not renewed at least 30 days in advance of the expiration date. In the event that other governmental agencies or public utilities will own the utilities to be installed or the improvements are covered by a maintenance guarantee to another agency, no additional maintenance guarantee shall be required.

(3) Restoration guarantee. A restoration guarantee in favor of the Township in an amount not to exceed 120% of the cost to restore all disturbed areas within the entire site to a reasonably safe, stable and aesthetic condition in the event that site improvements are commenced by the developer but are not completed. The restoration cost shall be the sum of the estimated cost of earthwork, topsoiling, seeding, mulching and removal of soil stockpiles to restore the site considering the maximum potential area of disturbance. The developer's engineer shall submit a cost estimate for the restoration work for approval by the Township Engineer. The term of the guarantee shall be for a period not to exceed 18 months with a provision that permits the Township to draw upon the guarantee if it is not renewed at least 30 days in advance of the expiration date. With the consent of the principal, the governing body may extend the term of the guarantee for an additional 18 months.

B. Form of guarantee. Guaranties may be in the form of cash, a bond from a surety authorized to do business in the state of New Jersey or an irrevocable letter of credit issued by a bank or savings institution authorized to do business in the state of New Jersey or cash. If bonds or letters of credit are utilized, they shall contain the address of a location in New Jersey where legal service can be made. A minimum of 10% of the amount of any guarantee shall be posted in cash or by certified check. The form of the guarantee shall be approved by the Township Attorney and the amount and items covered by the Township Engineer.

C. Liability during guarantee period. The applicant shall assume all liability for any accidents, injury, etc., which occur during the construction of improvements and until such time as the improvements have been accepted by resolution by the governing body.

D. Failure to complete improvements during the guarantee period. If the required improvements are not completed or corrected in accordance with the guarantee, the developer and surety shall be liable 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, subject to the public bidding requirements of the Local Public Contracts Law.

E. Release from performance guarantee. Upon substantial completion of improvements, the developer may notify the governing body that he is seeking release or partial release of his performance guarantee. On request from the governing body, the Township Engineer shall perform a final inspection of the improvements as previously defined in this chapter and prepare an inspection report which 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 improvements. The governing body, by resolution, shall either approve and accept the improvements determined to be complete and satisfactory by the Township Engineer or reject any or all of the improvements upon the establishment in the resolution of cause for the rejection, and shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted, subject to the developer providing a maintenance guarantee for the accepted improvements. The resolution shall be adopted not later than 45 days after receipt of the report prepared by the Township Engineer. Upon adoption of the resolution by the governing body, the developer shall be released from all liability pursuant to its performance guarantee with respect to the approved improvements, except for any portion deemed necessary by the Township Engineer to secure completion or correction of the improvements not yet approved, provided that 30% of the total amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

F. Rejected improvements. If any portion of the required improvements is rejected, the governing body may require the developer 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.

**Webmasters Note: The previous sections, 245-14 through 245-16, has been amended as per Ordinance No. 04-37.