[HISTORY: Adopted by the Mayor and Council of the Borough of East Rutherford 2-16-2010 by Ord. No. 2010-04.[1] Amendments noted where applicable.]
GENERAL REFERENCES
General fees — See Ch. 149.
Land subdivision and site plan review — See Ch. 327.
Zoning — See Ch. 389.
[1]
Editor’s Note: This ordinance also repealed former Ch. 314, Escrow Money Deposits, adopted 11-21-1989 by Ord. No. 89-20.
A. 
At the time of filing an application before the Planning Board or Zoning Board of Adjustment, the applicant shall pay the nonrefundable fees described in the following table. Each applicant shall also deposit with the Borough the amount described in the following table as "escrow deposit." An applicant which seeks a combination of approvals, such as site plan and variance relief, shall pay a fee and make the required escrow deposit equal to the sum of the fees for each element. Any change to the application during review which would result in an increased fee or escrow deposit based upon the provisions of this chapter shall require such additional fees and escrow deposit as computed from the table set forth below at the time of submission of the changed plans.
B. 
The fees required by this chapter shall be as follows:
Application Type
Fee
Escrow Deposit
Minor subdivision
$300
$800
Preliminary major subdivision
$500
Up to 20 lots, $400 per lot and $300 per lot thereafter
Final major subdivision approval
$400
Minimum of $1,000 shall be deposited. The escrow deposit shall be the sum of: $50 per acre or part thereof; plus $5 per dwelling unit; plus $0.10 per square foot or part thereof of total proposed nonresidential building area up to and including 20,000 square feet, plus $0.06 per square foot for every additional square foot of nonresidential building area over 20,000 square feet, $50 per lot with a minimum of $500
Concept plan
$250
Minimum of $1,000 shall be deposited. The escrow deposit shall be the sum of: $50 per acre or part thereof; plus $5 per dwelling unit; plus $0.10 per square foot or part thereof of total proposed nonresidential building area up to and including 20,000 square feet, plus $0.06 per square foot for every additional square foot of nonresidential building area over 20,000 square feet
Minor site plan
$300
$1,000
Preliminary major site plan
$500
Minimum of $2,000 shall be deposited. The escrow deposit shall be the sum of: $150 per acre or part thereof; plus $10 per dwelling unit; plus $0.20 per square foot or part thereof of total proposed nonresidential building area up to and including 20,000 square feet, plus $0.14 per square foot for every additional square foot of nonresidential building area over 20,000 square feet
Final major site plan approval
$500
Minimum of $750 shall be deposited. The escrow deposit shall be the sum of: $70 per acre or part thereof; plus $6 per dwelling unit; plus $0.10 per square foot or part thereof of total proposed nonresidential building area up to and including 20,000 square feet, plus $0.06 per square foot for every additional square foot of nonresidential building area over 20,000 square feet
Informal non-binding review
$250
Minimum of $1,000 shall be deposited. The escrow deposit shall be the sum of: $50 per acre or part thereof; plus $5 per dwelling unit; plus $0.10 per square foot or part thereof of total proposed nonresidential building area up to and including 20,000 square feet, plus $0.06 per square foot for every additional square foot of nonresidential building area over 20,000 square feet
General development plan
$500
Same as preliminary major site plan approval requirements
Conditional use approval
$350
Same as preliminary site plan approval requirements
Variance pursuant to N.J.S.A. 40:55D-70c
Residential
$50
$100 minimum
Nonresidential
$250
$4,000 minimum
Variance pursuant to N.J.S.A. 40:55D-70d
$500
Same as preliminary major site plan approval requirements
Appeals from Construction Official
$100
None
Zoning interpretation
$100
$400 minimum
Permit to build embedded street or for property not on public street
$100
Same as preliminary major site plan application requirements
Special meeting
$500
$1,000
C. 
If the escrow balance for an application shall fall below 25% of the initial escrow amount, the applicant shall be required to replenish the escrow account to the original required amount. No further action shall be taken on any application if such replenishment is not made prior to the hearing.
D. 
Notwithstanding the foregoing, if the application is deemed to be an "application of special concern" then the escrow deposit required shall be calculated by the Clerk of the applicable board after combining estimates received from all applicable municipal professionals; but in no event shall such escrow be less than the escrow called for in Subsection B above. The determination as to whether an application is "an application of special concern" shall be made by the Clerk of the applicable Board, after consultation with the Board Chairman, Engineer and Board Attorney. A decision of the Clerk may be appealed to the applicable board.
E. 
(Reserved)[1]
[1]
Editor's Note: Former Subsection E, which required furnishing of a performance guaranty, was superseded 10-16-2018 by Ord. No. 2018-07. For current provisions, see § 314-2, Required guarantees.
F. 
(Reserved)[2]
[2]
Editor's Note: Former Subsection F, which required furnishing of a performance guaranty, was superseded 10-16-2018 by Ord. No. 2018-07. For current provisions, see § 314-4, Maintenance guarantee.
G. 
The performance and maintenance guaranty shall be utilized or released in accordance with the Municipal Land Use Law.[3]
[3]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
H. 
In addition to the escrow deposit as set forth in Subsection B above, where post-approval inspections are necessary under the relevant approvals, then the applicant shall deposit an additional escrow deposit in the lesser amount of:
(1) 
Five percent of the estimated construction cost as determined by the Board Engineer; or
(2) 
The maximum amount allowed by any applicable law.
I. 
The application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of development under construction and review. A professional shall not review items which are subject to approval by any state government agency and not under municipal jurisdiction except to the extent consultation with a state agency is necessary due to the effect of state approvals on the application in question. Inspection fees shall be charged only for actual work shown on a subdivision or site plan or required by a resolution of approval. Professionals inspecting improvements under construction shall charge only for inspections that are reasonably necessary to check the progress and quality of the work and such inspections shall be reasonably based on the approved development plans and documents. The only cost that shall be added to any such charges shall be actual out-of-pocket expenses of any such professionals or consultants including customary expenses incurred in processing applications and inspecting improvements. The municipality or board shall not bill the applicant or charge any escrow account or deposit for any municipal clerical or administrative functions, overhead expenses, meeting room charges or any other municipal costs and expenses except as provided for in this section, nor shall a municipal professional add any such charges to his or her bill.
J. 
The Chief Financial Officer of the Borough shall make all payments for services rendered to East Rutherford or to the appropriate board for review of applications for development, review and preparation of documents, inspection and improvements or other purposes allowed by the Municipal Land Use Law.[4]
[4]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
K. 
Each payment charged to the escrow deposit shall be pursuant to a voucher from the professional, which voucher shall identify the personnel performing the service, the date each item of service was performed, the hours spent to no-more-than-one-quarter-hour increments, the hourly rate and the expenses incurred. All professionals shall submit vouchers to the Clerk of the appropriate board on a monthly basis in accordance with schedules and procedures established by the Chief Financial Officer. Services are provided by a municipal employee, the municipal employee shall prepare and submit to the Clerk of the appropriate board a statement containing the same information as required on a voucher, on a monthly basis. The professional and/or municipal employee shall send an informational copy of all vouchers or statements submitted to the Clerk of the appropriate board simultaneously to the applicant. The Clerk of the appropriate board shall transmit the original of the vouchers to the Chief Financial Officer.
L. 
The Clerk of each board, in consultation with the Chief Financial Officer, shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings (if any), disbursements and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis if the escrow balance is $1,000 or less, or on a monthly basis if the escrow balance exceeds $1,000.
M. 
If an escrow deposit contains insufficient funds to enable the municipality or applicable board to perform required application reviews or improvement inspections, the Clerk of the appropriate board shall provide the applicant with a notice of the insufficient escrow deposit balance. The applicant shall, within a reasonable time, post a deposit to the account to restore the account to the amount originally required by Subsection B above.
N. 
Whenever an amount in excess of $5,000 shall be deposited by an applicant into an escrow account or to satisfy the guaranty requirements of N.J.S.A. 40:55D-53, the money, until repaid or applied to the purposes for which it is deposited, including the applicant's portion of the interest earned thereon, except as otherwise provided in this section, shall continue to be the property of the applicant and shall be held in trust by East Rutherford. Money deposited shall be held in a banking institution or savings and loan association in New Jersey insured by an agency of the federal government or in any other fund or depository of proof for such deposits by the State of New Jersey, in an account bearing interest at the minimum rate currently paid by the institution or depository on time or savings deposits. East Rutherford shall notify the applicant in writing of the name and address of the institution or depository in which the deposit is held and the amount of the deposit. East Rutherford shall not be required to refund an amount of interest paid on a deposit which does not exceed $100 for the year. If the amount of interest exceeds $100, that entire amount shall belong to the applicant and shall be refunded to the applicant by East Rutherford annually or at the time the deposit is repaid or applied to the purposes for which it is deposited, as the case may be; provided that East Rutherford may retain for administrative expenses a sum equal to no more than one-third of that entire amount, which shall be in lieu of all other administrative and custodial expenses.
O. 
After the appropriate board has granted final approval and signed the subdivision plat or site plan, in the case of application review escrows and deposits, or after the improvements have been approved as provided in N.J.S.A. 40:55D-53, in the case of improvement inspection escrows and deposits, the applicant shall send written notice by certified mail to the Chief Financial Officer of the municipality, to the Clerk of the applicable board and to the relevant municipal professional, that the application or the improvements, as the case may be, are completed. After receipt of such notice, the professionals shall render a final bill to the Chief Financial Officer within 30 days, and shall send a copy simultaneously to the applicant. The Chief Financial Officer shall render a written final accounting to the applicant on the uses to which the deposit was put within 45 days of receipt of the final bill. Any balances remaining in the deposit or escrow account, including interest in accordance with Subsection N above, shall be refunded to the applicant along with the final accounting.
P. 
An applicant shall notify the Mayor and Council, in writing, with a required copy to the Chief Financial Officer, the Clerk of the appropriate board and the applicable professional, whenever the applicant disputes the charges made by a professional for service rendered to East Rutherford in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to the Municipal Land Use Law.[5] The Mayor and Council, or its designee, shall within a reasonable time period attempt to mediate any disputed charges. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the Bergen County Construction Board of Appeals any charge to an escrow account or deposit by any municipal professional or consultant, or the cost of the installation of improvements estimated by the Municipal Engineer pursuant to N.J.S.A. 40:55D-53.4. An applicant or his authorized agent shall submit the appeal in writing to the Bergen County Construction Board of Appeals and shall simultaneously send a copy of the appeal to the Borough Clerk, the Clerk of the applicable board and any professional whose charge is the subject of the appeal. An applicant shall file an appeal within 45 days from receipt of the informational copy of the professional's voucher required by Subsection K above, provided that if the professional has not supplied the applicant with an informational copy of the voucher, then the applicant shall file his appeal within 60 days from receipt of the municipal statement of activity against the deposit or escrow account required by Subsection K above. An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six months to demonstrate that they represent a pattern of excessive or inaccurate charges. An applicant making use of this provision need not appeal each charge individually. The County Board of Appeals shall determine the appeal in accordance with the requirements of the Municipal Land Use Law.[6]
[5]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[6]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
[Added 10-16-2018 by Ord. No. 2018-07]
For the purpose of assuring the installation and maintenance of bondable land development improvements, as a condition of all final site plan, subdivision, and zoning permit approvals, the Board or Zoning Officer shall require, as appropriate, and the Borough Council shall accept, in accordance with the standards adopted hereinafter:
A. 
The furnishing of a performance guarantee in favor of the Borough in an amount not to exceed 120% of the cost of improvements required by an approval or developer's agreement, ordinance, or regulation to be dedicated to a public entity, and that have not yet been installed including: streets, curbs, grading, pavement, gutters, sidewalks, streetlighting, street trees, surveyors' monuments, water mains, sanitary sewers, community septic system, drainage structures, public improvements of open space and any grading necessitated by the preceding improvements and privately owned perimeter buffer landscaping. The performance guarantee shall also include, within an approved phase or section of a development, privately owned perimeter buffer landscaping, as required by local ordinance or imposed as a condition of approval.
B. 
The cost of the performance guarantee shall be determined by the Borough Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4. At the developer's option, a separate performance guarantee may be posted for the privately owned perimeter buffer landscaping. The Borough Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.
C. 
Performance guarantees shall be submitted in the following form:
(1) 
A minimum of 10% of the performance guarantee must be posted in cash.
(2) 
The remaining 90% of the performance guarantee amount may be posted in cash, certified check, irrevocable standby letter of credit or surety bond issued by an insurance company licensed to do business in the State of New Jersey and acceptable to the Borough Attorney in the favor of the Borough.
(3) 
If the applicant elects to post an irrevocable standby letter of credit, it must be written in accordance with the standardized form adopted by regulation by the New Jersey Department of Community Affairs pursuant to Section 1 of P.L.1999, c.68 (N.J.S.A. 40:55D-53a) as complying with the provisions of Section 41 of P.L.1975, c.291 (N.J.S.A. 40:55D-53).
(4) 
All guarantees shall provide for construction of the required improvements within two years of the date of their posting or such other time as determined by the Borough agency. This time period may be extended by the governing body, in the form of a resolution granting such extension provided the Borough agency has, if necessary, extended the period of protection pursuant to N.J.S.A. 40:55D-52a. As a condition of this extension the guarantee amount may be adjusted to 120% of the estimated cost to construct the improvements at that time and additional inspection fees deemed necessary by the Borough agency shall be paid.
(5) 
All performance guarantees shall remain in effect until formally released by the governing body by a resolution and receipt of an approved maintenance guarantee as required.
(6) 
All guarantees, sureties, and lending institutions are subject to the approval of the Borough Attorney and the governing body.
D. 
The furnishing of a temporary certificate of occupancy guarantee in the amount of 120% of the cost of installing the remaining improvements which are not covered by a performance guarantee and are required to be completed before the issuance of a permanent certificate of occupancy. The scope and amount of such a guarantee will be determined by the Borough Engineer. Upon posting of a temporary certificate of occupancy guarantee, all sums remaining under a performance guarantee, required pursuant to § 314-2A, which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. At no time may a Borough hold more than one guarantee or bond of any type with respect to the same line item. The temporary certificate of occupancy guarantee shall be released by the governing body upon the issuance of a permanent certificate of occupancy with regard to the development, unit, lot, building, or phase as to which the temporary certificate of occupancy relates.
[Added 10-16-2018 by Ord. No. 2018-07]
A. 
In addition to guarantees required pursuant to § 314-2, a developer shall furnish to the Borough a separate guarantee, referred to herein as a "safety and stabilization guarantee," in favor of the Borough, to be available to the Borough solely for the purpose of returning property that has been disturbed to a safe and stable condition or otherwise implementing measures to protect the public from access to an unsafe or unstable condition, only in the circumstance that: 1) site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least 60 consecutive days following such commencement for reasons other than force majeure; and 2) work has not recommenced within 30 days following the provision of written notice by the Borough to the developer of the Borough's intent to claim payment under the guarantee.
B. 
The amount for the safety and stabilization guarantee shall be calculated to equal the following:
(1) 
For a development with bonded improvements in an amount not exceeding $100,000, shall be $5,000.
(2) 
For a development with bonded improvements exceeding $100,000, shall be calculated as a percentage of the bonded improvement costs of the development or phase of development as follows:
(a) 
$5,000 for the first $100,000 of bonded improvement costs, plus 2.5% of bonded improvement costs in excess of $100,000 up to $1,000,000, plus 1% of bonded improvement costs in excess of $1,000,000.
C. 
Notice. The Borough shall not provide notice of its intent to claim payment under a safety and stabilization guarantee until a period of at least 60 days has elapsed during which all work on the development has ceased for reasons other than force majeure. The Borough shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.
[Added 10-16-2018 by Ord. No. 2018-07]
A. 
The developer shall post with the Borough, prior to the release of a performance guarantee required pursuant to § 314-2, a maintenance guarantee, in an amount not to exceed 15% of the cost of the improvements which are being released.
B. 
The developer shall post with the Borough, upon the inspection and issuance of final approval of the following private site improvements by the Borough Engineer, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation, which cost shall be determined by the Borough Engineer according to the method of calculation set forth in Section 15 of N.J.S.A. 40:55D-53.4, of the following private site improvements:
(1) 
Stormwater management basins;
(2) 
In-flow and water quality structures within the basins; and
(3) 
The out-flow pipes and structures of the stormwater management system, if any.
C. 
The term of the maintenance guarantee shall be for a period not to exceed two years and shall automatically expire at the end of the established term.
[Added 10-16-2018 by Ord. No. 2018-07]
A. 
Prior to the signing and recording of final major subdivision plats and as a condition of final site plan approval in the case of a site plan, the developer shall enter into the agreement with the governing body if so required by the Borough agency. This agreement shall be of a form that is acceptable to the Borough Attorney and one in which the developer agrees to abide by the terms and conditions of approval, construct the required improvements in accordance with the approved plans, agree to maintain the constructed improvements, including, but not limited to, payment of street lighting charges, snow removal, maintenance of storm drainage, sewer and water facilities. The developer also shall agree that in the event the improvements are not maintained, the Borough can utilize the cash portions of the performance guarantees to immediately attend to items presenting a safety hazard.
B. 
The developer shall reimburse the Borough for the cost and expense of the developer's agreement and filing of the developer's agreement with the Bergen County Clerk in accordance with the applicable professional contract, prior to execution of same.
[Added 10-16-2018 by Ord. No. 2018-07]
In the event that other governmental agencies or public utilities will automatically own the utilities to be installed or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the Borough for such utilities or improvements.
[Added 10-16-2018 by Ord. No. 2018-07]
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 Borough for the reasonable cost of the improvements not completed or corrected, and the Borough 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, N.J.S.A. 40A:11-1 et seq.
[Added 10-16-2018 by Ord. No. 2018-07]
All improvements shall be in accordance with the design standards of the Borough Code or as authorized by a design exception granted by the reviewing board and shall be subject to inspection and approval by the Borough Engineer. The Borough Engineer shall be notified 24 hours prior to the start of the various phases of the work, and if discontinued, shall again be notified when the work will be continued.
[Added 10-16-2018 by Ord. No. 2018-07]
A. 
Upon substantial completion of all required street improvements (except for top course), and appurtenant utility improvements, and the connection of same to the public system, the obligator may request of the governing body in writing, by certified mail addressed in care of the Borough Clerk, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to subsection 315-2(a) of this section,[1] 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 Borough Engineer. The request shall indicate which Borough improvements have been completed and which improvements remain uncompleted in the judgment of the obligor. Concurrent with this notice the obligor shall forward a set of as-built plans for the following:
(1) 
Roads (plan and profiles);
(2) 
Surface and stormwater drainage (plans and profiles) for facilities in roads and easements;
(3) 
Sanitary sewers including individual lot connections and cleanouts (plans and profiles) for facilities in roads and easements;
(4) 
Water mains, gas mains and underground electric, telephone and community antenna television (CATV) conduits (plans and profiles) for facilities in roads and easements.
[1]
Editor's Note: So in original. See § 314-2 regarding performance guarantees.
B. 
Upon acceptance of the as-built plan information by the Borough Engineer, two Mylar and four paper copies of the as-built plan shall be submitted to the Borough. Thereupon the Borough Engineer shall inspect all bonded improvements of which such notice has been given and shall file a detailed list and report, in writing, with the governing body and shall simultaneously send a copy to the obligor not later than 45 days after receipt of the obligor's request. The list prepared by the Borough Engineer 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 Borough Engineer 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 improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to subsection 315-2(a) of this section.[2]
[2]
Editor's Note: So in original. See § 314-2 regarding performance guarantees.
C. 
The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Borough Engineer, or reject any or all of these bonded improvements upon the establishment in the resolution of the cause for rejection, and shall approve and authorize the amount of reduction to be made in the performance guarantee and the safety and stabilization bond relating to the improvements accepted, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to subsection 315-2(a) of this section.[3] This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee and the safety and stabilization bond with respect to those approved bonded improvements except for the portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the performance guarantee and the safety and stabilization bond posted may be retained to ensure completion and acceptability of all improvements.
[3]
Editor's Note: So in original. See § 314-2 regarding performance guarantees.
D. 
If the Borough Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection A within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough Engineer 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 governing body fails to approve or reject the bonded improvements determined by the Borough Engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within 45 days from the receipt of the Borough Engineer'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 by the Borough Engineer and appended to the performance guarantee pursuant to subsection 315-2(a) of this section;[4] and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.
[4]
Editor's Note: So in original. See § 314-2 regarding performance guarantees.
E. 
In the event that the obligor has made a cash deposit with the Borough or approving 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, provided that if the safety and stabilization guarantee is included as a line item of the performance guarantee the Borough may retain cash equal to the amount of the remaining safety and stabilization guarantee.
F. 
If any portion of the required bonded improvements is rejected, the approving 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 governing body or the Borough Engineer.
H. 
The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements. The Borough may require the developer to post the inspection fees in escrow in an amount:
(1) 
Not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of bonded improvements estimated pursuant to the Municipal Land Use Law.[5]
[5]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
(2) 
Not to exceed 5% of the cost of private site improvements that are not subject to a performance guarantee, which cost shall be determined pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).
(3) 
For those developments for which the reasonably anticipated fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall deposit the remaining 50% of the anticipated inspection fees.
(4) 
For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may at the option of the developer be paid in four installments. The initial amount deposited by a developer shall be 25% of the reasonably anticipated fees. When the balance on deposit drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall file additional deposits of 25% of the reasonably anticipated fees.
(5) 
The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit, nor shall the developer proceed with any work for which an inspection is required until sufficient funds are on deposit, provided that the Borough delivers to the developer a written inspection escrow deposit request, signed by the Borough Engineer, which informs the developer of the need for additional inspections, details the items or undertakings that require inspection, estimates the time required for those inspections, and estimates the cost of performing those inspections.
I. 
In the event that final approval is by stages or sections of development pursuant to N.J.S.A. 40:55D-38, the provisions of this subsection shall be applied by stage or section.
J. 
No performance guarantees shall be released if the developer shall be in default of its developer's agreement in the payment of escrow fees or payment of taxes.
[Added 10-16-2018 by Ord. No. 2018-07]
To the extent that any of the improvements have been dedicated to the Borough on the subdivision plat, site plan and/or zoning permit, the municipality shall be deemed, upon the release of any performance guarantee required hereunder, to accept dedication for public use any improvements made thereunder, provided that such improvements have been inspected and have received final approval by the Borough Engineer.
[Added 10-16-2018 by Ord. No. 2018-07]
The installation of any subdivision improvements or the commencement of any clearing and grading subsequent to preliminary approval shall not be undertaken unless the following has been done:
A. 
If at any time of preliminary approval but prior to the commencement of final approval the developer elects to proceed with the installation of improvements required under this chapter, the developer shall furnish the Borough with the final construction drawings and details.
B. 
The Municipal agency having jurisdiction over the subdivision (Planning Board or Board of Adjustment) in consultation with the Borough Engineer shall review the final construction plans to determine that the clearing, grading and/or installation of improvements will not hinder future developments or create physical or aesthetic problems in the event that further development of the site is not undertaken.
C. 
The required construction, inspection, engineering, and administration fees have been paid, and adequate performance guarantees have been posted to provide for the cost to the Borough of performing work that may be necessary to protect adjacent property owners and the public interest in the event that such clearing, grading and/or further development of the site is not undertaken.
D. 
Such performance guarantees shall include, but are not limited to, the cost of the Borough providing drainage facilities necessary to protect off-tract areas from flooding, screening, or fencing that may be required and all improvements to be undertaken which are within existing public rights-of-way or easements.
E. 
In addition to the performance guarantee, a developer shall furnish to the Borough a separate guarantee, referred to as a "safety and stabilization bond," in favor of the Borough, for the purpose of returning property that has been disturbed to a safe and stable condition or otherwise implementing measures to protect the public from access to an unsafe or unstable condition.
F. 
Prior to any disturbance of the site or commencement of any construction, the developer shall enter into an agreement with the governing body. This agreement shall be of a form that is acceptable to the Borough Attorney and one in which the developer agrees to abide by the terms and conditions of approval, construct the required improvements in accordance with the approved plans, agrees to maintain the site and the constructed improvements. The developer also shall agree that in the event that the site and improvements are not maintained, the Borough can utilize the cash portions of the performance guarantee to immediately attend to items presenting a safety hazard.
G. 
No development permit shall be issued, nor any work commenced on site, until compliance with this section and notice of intention to commence construction of such improvements shall be furnished to the Borough Engineer.
H. 
At least two weeks prior to the start of any construction, the developer shall notify the Borough Engineer of his intention to start work so that a preconstruction meeting can be arranged between the developer and the Borough Engineer.
I. 
The Borough Engineer must be notified at least 48 hours in advance of any on-site development.