In cases where the need for an off-tract improvement is created by the proposed development and where no other property owners receive a special benefit thereby, the Board may recommend that the Borough Council require the applicant, as a condition of approval, to acquire lands at the applicant's expense outside of the tract to be developed and improve and dedicate such lands to the Borough in the manner provided hereafter and as otherwise provided by law, as if such improvement was an on-tract improvement, or, in lieu thereof, require the developer to deposit with the Borough a sum of money sufficient to allow the Borough to acquire and improve such lands.
In cases where the need for an off-tract improvement is created by the proposed development and where the Board determines that properties outside the development will also be benefited by the improvement, the following procedure shall be followed:
A. 
The Board shall forthwith forward to the Borough Council a description of such improvement, together with its request that the Borough Council determine and advise the Board of the procedure to be followed in the construction or installation thereof. The Board shall defer final action upon the application for development until receipt of the Borough Council's determination in accordance with Subsection B below or until the expiration of 45 days after the forwarding of such description to the Borough Council without such determination having been made, whichever occurs first.
B. 
The Borough Council, within 45 days after receipt of said description, shall determine and advise the Board whether:
(1) 
Such improvement is to be constructed or installed by the Borough:
(a) 
As a general improvement, the cost of which is to be borne at general expense, except as hereinafter otherwise provided as to the contribution thereto by the developer; or
(b) 
As a local improvement, all or part of the cost of which is to be specially assessed against properties benefited thereby in proportion to benefits conferred by the improvement in accordance with N.J.S.A. 40:56 et seq., except as hereinafter otherwise provided as to a contribution thereto by the developer.
(2) 
Such improvement is to be constructed or installed by the developer under a formula for partial reimbursement as hereinafter set forth.
C. 
If the Borough Council shall determine that such improvement shall be constructed or installed pursuant to Subsection B(1)(a) above, the Board shall estimate, with the aid of the Borough Engineer or such other persons with pertinent information or expertise, the amount, if any, by which the total cost thereof will exceed the total amount by which all properties, including the tract to be developed, will be specially benefited thereby, and the developer shall be liable to the Borough for such excess. Further, the Borough Council shall adopt an ordinance authorizing and providing for the financing of the improvement in a manner consistent with the obligation of the developer for any excess of total cost over total benefits conferred as set forth above.
D. 
If the Borough Council shall determine that such improvement shall be constructed or installed pursuant to Subsection B(1)(b) above, the Board shall, as provided in Subsection C above, estimate the difference between the total costs to be incurred and the total amount by which all properties to be benefited thereby, including the tract to be developed, will be specially benefited by the improvement, and the developer shall be liable to the Borough therefor, as well as for the amount of any special assessments against the tract to be developed for benefits conferred by the improvement. Further, the Borough Council shall adopt an ordinance authorizing and providing for the financing of the improvement and the assessment of benefits arising therefor in a manner consistent with the obligation of the developer with respect thereto, and proceedings under said ordinance shall be in accordance with N.J.S.A. 40:56 et seq., except to the extent modified by the obligation of the developer for any excess of total cost over total benefits conferred, as set forth above.
E. 
If the Borough Council shall determine that such improvement is to be constructed or installed by the developer pursuant to Subsection B(2) above, the Board shall, in like manner, estimate the amount of such excess, and the applicant shall be liable to the Borough therefor, as well as for the amount of any special assessments against the tract to be developed for benefits conferred by the improvement. However, the developer shall be entitled to be reimbursed by the Borough for the amount of any special assessments against property other than the tract to be developed for benefits conferred by the improvement, if and when the special assessments against such other properties are received by the Borough. Further, the Borough Council shall adopt an ordinance authorizing and providing for the assessment against all properties, including the tract to be developed, of benefits conferred by the improvement, and proceedings under said ordinance shall be in accordance with N.J.S.A. 40:56. However, any such assessment against the tract to be developed shall be marked paid and satisfied in consideration of the construction or installation of the improvement by the developer.
F. 
If the Borough Council fails to adopt such ordinance or resolution within the forty-five-day time period, the final subdivision or site plan shall be designed accordingly, and the Board shall thereupon grant or deny final approval.
G. 
If the Borough Council adopts such ordinance or resolution within the requisite time period, the developer shall, prior to the issuance of a zoning permit, agree, in writing, to the contribution established by the Borough Council. Nothing herein shall be construed to limit the developer's rights, pursuant to N.J.S.A. 40:55D-42.
The developer shall be required to provide, as a condition of final approval, a performance guaranty, pursuant to Article 57 of this chapter and as follows:
A. 
If the improvement is to be constructed by the applicant pursuant to § 110-243 or § 110-244B(2) above, a performance guaranty with surety in an amount equal to 120% of the estimated cost of the improvement, or, if any part of said improvement is to be acquired or installed by the Borough pursuant to § 110-244 above, a cash deposit equal to 120% of the estimated cost of such acquisition or installation by the Borough.
B. 
If the improvement is to be constructed by the Borough as a general improvement under § 110-244B(1)(a) above, a cash deposit equal to 120% of the amount of the excess of the estimated cost of the improvement over the estimated total amount by which all properties, including the tract to be developed, will be specially benefited thereby.
C. 
If the improvement is to be constructed by the Borough as a local improvement under § 110-244B(1)(b) above, a cash deposit equal to the amount referred to in Subsection B above, plus an amount equal to 120% of the estimated amount by which the tract to be developed will be specially benefited by the improvement.
In any case where a developer shall deposit money with the Borough for the completion of an improvement that is to be constructed by the Borough pursuant to this article, the Borough Council shall have enacted an ordinance authorizing the improvement within five years after the date all other development improvements are completed, or said money shall be transferred to the Borough capital improvements fund.
All moneys paid by a developer pursuant to this article shall be deposited with the Borough Treasurer, who shall provide a suitable depository therefor. Such funds shall be used only for the improvement for which such were deposited or an alternate improvement serving the same purpose.
Upon completion of an off-tract improvement pursuant to this article, the developer's liability hereunder shall be recalculated in accordance with the actual, as compared with the estimated, cost of improvements. To the extent that such recalculation shall increase the amount of any cash deposit to be made by the developer, the developer shall forthwith pay the amount of such increase to the Borough. To the extent that such shall decrease the amount thereof, the Borough shall forthwith refund the amount of such decrease to the developer. In cases where improvements are specially assessed against all benefited properties, recalculation shall be made by the Borough Tax Assessor in the course of the special assessment proceedings. In other cases, it shall be made by the Borough Engineer.