40:14B-73. Conditions of final site plan approval

11. a. Before recording of final subdivision plats or as a condition of final site plan approval, the municipal authority may require and shall accept in accordance with the standards adopted pursuant to sections 11 through 16 of P.L.1999, c.11 (C.40:14B-73 through C.40:14B-78) for the purpose of assuring the installation and maintenance of on-tract utility improvements:

(1) The furnishing of a performance guarantee in favor of the municipal authority in an amount not to exceed 120% of the cost of installation, which cost shall be determined or approved by the municipal authority engineer according to the method of calculation set forth in section 15 of P.L.1999, c.11 (C.40:14B-77), for improvements which the municipal authority may deem necessary or appropriate including sanitary sewers and related utility facilities and improvements.

The municipal authority engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, or approve an itemized cost estimate of the improvements as prepared by the developer's engineer, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.

(2) The furnishing of a maintenance guarantee to be posted with the municipal authority for a period not to exceed two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the improvement, which cost shall be determined by the municipal authority engineer according to the method of calculation set forth in section 15 of P.L.1999, c.11 (C.40:14B-77).

b. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the municipal authority by resolution. 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, which cost shall be determined by the municipal authority engineer according to the method of calculation set forth in section 15 of P.L.1999, c.11 (C.40:14B-77) as of the time of the passage of the resolution.

c. 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 municipal authority for the reasonable cost of the improvements not completed or corrected and the municipal authority may either prior to or after the receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.).

d. (1) Upon substantial completion of all required utility improvements, and the connection of same to the public system, the obligor may request of the municipal authority in writing, by certified mail addressed in care of the chief administrative officer of the municipal authority, that the municipal authority prepare, in accordance with the itemized cost estimate prepared or approved by the municipal authority engineer and appended to the performance guarantee pursuant to subsection a. of this section, a list of all uncompleted or unsatisfactory completed improvements. If such a request is made, the obligor shall send a copy of the request to the municipal authority engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Thereupon the municipal authority shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the municipal authority, and shall simultaneously send a copy thereof to the obligor not later than 45 days after receipt of the obligor's request.

(2) The list prepared by the municipal authority 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 municipal authority 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, in accordance with the itemized cost estimate prepared or approved by the municipal authority engineer and appended to the performance guarantee pursuant to subsection a. of this section.

e. (1) The municipal authority, by resolution, shall either approve the improvements determined to be complete and satisfactory by the municipal authority, 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 or approved by the municipal authority engineer and appended to the performance guarantee pursuant to subsection a. of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the municipal authority. Upon adoption of the resolution by the municipal authority, 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 an amount of the performance guarantee equal to the cost of the remaining open improvements may be retained to ensure completion and acceptability of all improvements.

(2) If the municipal authority fails to send or provide the list and report as requested by the obligor pursuant to subsection d. of this section within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the municipal authority to provide the list and report within a stated time and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

If the municipal authority fails to approve or reject the improvements determined by the municipal authority to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within 45 days from the receipt of the municipal authority'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 or approved by the municipal authority engineer and appended to the performance guarantee pursuant to subsection a. of this section; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(3) In the event that the obligor has made a cash deposit with the municipal authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this subsection shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

f. If any portion of the required improvements is rejected, the municipal authority may require the obligor 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.

g. Nothing herein, however, shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the municipal authority or the municipal authority engineer.

h. The obligor shall reimburse the municipal authority for all reasonable inspection fees paid to the municipal authority for the foregoing inspection of improvements; provided that the municipal authority may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined pursuant to section 15 of P.L.1999, c.11 (C.40:14B-77). The developer shall deposit with the municipal authority the full amount of reasonably anticipated inspection fees unless the section of the development that is under construction is of a large size and the sewer or water utilities, or both, are going to be constructed in phases. When the developer and the municipal authority reach agreement on the phasing of utility construction, the full amount of reasonably anticipated inspection fees for those phases scheduled to start construction shall be deposited with the municipal authority. The municipal authority shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.

i. In the event that final approval is by stages or sections of development, the provisions of this section shall be applied by stage or section.

j. To the extent that any of the improvements have been dedicated to the municipal authority on the subdivision plat or site plan, the municipal authority shall be deemed, upon the release of any performance guarantee required pursuant to subsection a. of this section, to accept dedication for public use of water and sewer facilities and any other improvements made thereon according to site plans and subdivision plats approved by the municipal authority, provided that such improvements have been inspected and have received final approval by the municipal authority.

L.1999,c.11,s.11.