Town of Westfield, NJ Article 5 Fees, Deposits, Guarantees and Other Payments

§ 5.01 Filing fees for development applications.

All filing fees for development applications as hereinafter required shall be payable to the Board Secretary at the time of filing of the application. All permits, determinations, resolutions or certificates of approval are subject to the payment of all fees provided for in this section, and no approvals shall be given by the Board until proof has been submitted to it that the requisite fees have, in fact, been paid to the Board Secretary. Notwithstanding the above, projects of the Town of Westfield and the Town of Westfield Board of Education shall be exempt from the payment of the filing fees required by this article.

§ 5.02 Schedule of fees.

[Amended 7-10-2007 by Ord. No. 1904; 12-16-2008 by Ord. No. 1930; 3-8-2022 by G.O. No. 2022-06]

There is hereby established in connection with the various applications for development and other matters which are the subject of this ordinance the following schedule of fees. Every applicant for development shall file with his application a filing fee as indicated in the following schedule. Requests for more than one of the items listed below shall require the payment of separate fees for each item, the sum of which shall be the total fees to be paid. The fee for preliminary and final major subdivisions or site plan approval shall be considered cumulative and both shall be paid at the time of the application for preliminary approval.

A. Fees required.

Application Type	Fee
All "C" variances and exceptions, § 7.01C (Planning Board or Board of Adjustment, as applicable)	Detached one or two dwelling unit buildings: $265 for the first variance, and $100 per each additional variance
	Other: $265 per variance
Each "D" variance, § 7.01D (Board of Adjustment):	Detached one or two dwelling unit buildings: $500 per
	Other: $1,000 per
Request for the issuance of permits for structures in areas reserved on the Official Map or for lots not fronting upon a street, § 7.01E or § 7.01F or for certificates of nonconforming use, § 7.01H (Planning Board or Board of Adjustment, as applicable)	$250
Appeal alleging erroneous decision of the Zoning Officer regarding the zoning regulations, § 7.02B (Board of Adjustment):	$250
Interpretation of the zoning regulations, Zoning Map or Official Map, § 7.02C (Board of Adjustment):	$500
Conditional use review, Article 18 (Planning Board)	$300
Informal review of concept plan, § 8.07 (Planning Board)	$250
Minor site plan, § 8.08 (Planning Board or Board of Adjustment, as applicable)	$500
Minor subdivision, § 8.09 (Planning Board or Board of Adjustment, as applicable)	$500
Preliminary major site plan, § 8.10 (Planning Board or Board of Adjustment, as applicable)	$500, plus $150 per 10k square feet over 20k square feet of lot area; plus $20 per 1k square feet over 1k square feet of gross floor area
Preliminary major subdivision, § 8.10 (Planning Board or Board of Adjustment, as applicable)	$1,000, plus $250 per lot
Final major site plan, § 8.11 (Planning Board or Board of Adjustment, as applicable)	50% of preliminary application fee
Final major subdivision, § 8.11 (Planning Board or Board of Adjustment, as applicable)	50% of preliminary application fee
List of property owners within 200 feet of applicant's property from current tax duplicates, § 4.04C	$0.25 per name or $10, whichever is greater
Transcripts of Planning Board or Board of Adjustment hearings	Must be obtained from the court reporter
Duplicate copies of any permit or certificate	$10
Special Meeting of the Planning Board or Zoning Board of Adjustment	$1,000 shall be paid to the Town of Westfield prior to setting the special meeting date
Extension requests	$100 shall be paid for any request to extend the expiration date of a development or variance approval to be heard by the Planning Board or Zoning Board of Adjustment

§ 5.03 Payment for professional services and other expert services.

[Amended 12-16-2008 by Ord. No. 1930]

The Chief Financial Officer of the Town shall make all of the payments to professionals for services rendered to the Town or the Board for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provisions of the Municipal Land Use Law and this ordinance. At the time of filing of an application for development, appeal, or other matter pursuant to this ordinance, the applicant shall pay to the Board Secretary a deposit, in accordance with the schedule in Subsection A. below to be used to reimburse the Town for said professional services. Deposits shall be paid by cashier's check, certified check, bank money order or cash, and shall be placed by the Town in an escrow account if required pursuant to § 5.06B. In the case of proposals requiring a combination of approvals, such as subdivision, site plan and/or variance(s), the applicant shall deposit an amount equal to the sum of the deposits required for each application.

A. The initial deposit for payment of professional services shall be as set forth on the following schedule, provided that if the Board Secretary determines that an initial deposit greater than indicated on the following schedule is necessary to reimburse the anticipated cost of professional services as relates to a particular application, such as, but not limited to, circulation-intensive sites requiring the services of a traffic engineering consultant, the applicant shall be required to deposit said greater amount.

[Amended 12-16-2008 by Ord. No. 1930; 3-8-2022 by G.O. No. 2022-06]

Application Type	Initial Deposit
Appeal for "C" variance, § 7.01C (Planning Board or Board of Adjustment, as applicable)	Detached one or two dwelling unit buildings: $800
	Other: $1,000
Appeal for "D" variance, § 7.01D (Board of Adjustment)	Detached one or two dwelling unit buildings: $800
	Other: $2,000
Request for the issuance of permits for structures in areas reserved on the Official Map or for lots not fronting upon a street, § 7.01E or § 7.01F or for certificates of nonconforming use, § 7.01H (Planning Board or Board of Adjustment, as applicable)	$250
Appeal alleging erroneous decision of the Zoning Officer regarding a zoning regulation, § 7.02B (Board of Adjustment)	$500
Interpretation of the zoning regulations, Zoning Map or Official Map, § 7.02C (Board of Adjustment)	$500
Conditional use review, Article 18 (Planning Board)	$750
Informal review of concept plan, § 8.07 (Planning Board)	$400
Minor site plan, § 8.08 (Planning Board or Board of Adjustment, as applicable)	$750
Minor subdivision, § 8.09 (Planning Board or Board of Adjustment, as applicable)	$750 per lot
Preliminary major site plan, § 8.10 (Planning Board or Board of Adjustment, as applicable)	$5,000
Preliminary major subdivision, § 8.10 (Planning Board or Board of Adjustment, as applicable)	$2,500 plus $25 per lot
Final major site plans, § 8.11 (Planning Board or Board of Adjustment, as applicable)	If reviewed at same time as preliminary major site plan: none. If reviewed subsequent to preliminary major site plan: One half preliminary major site plan escrow fee.
Final major subdivisions, § 8.11 (Planning Board or Board of Adjustment, as applicable)	1/2 the cost of the preliminary major subdivision escrow fee

B. Depletion of deposits. If an escrow account or deposit contains insufficient funds to enable the Town or the Board to perform required application reviews or inspections of improvements, the Chief Financial Officer of the Town shall provide the applicant with a notice of the insufficient escrow or deposit balance. In order for work to continue on the development or the application, the applicant shall within a reasonable time period post a deposit to the account in an amount to be agreed upon by the Town or the Board and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

C. Failure to provide or maintain adequate deposit. No application shall be deemed complete and no formal action shall be taken by the Board until the initial deposit required by Subsection A. above has been submitted. If the funds required by Subsection B. above for professional services are not deposited in a timely manner, the Board Secretary shall notify the Board. No further action shall be taken on the application unless the deposits have been made by the applicant as required above. In the event that a delay in the payment or maintenance of the required deposits results in a substantial reduction in the available time for action by the Board, or any extension thereof as provided by this ordinance, the Board may, at its discretion, dismiss the application.

D. Eligible charges against deposit. All professional charges for review of an application for development, review and preparation of documents, or inspection of improvements shall be reasonable and necessary, given the status and progress of the application or construction. The following provisions shall apply:

1. Professional charges may include the services of a duly licensed engineer, surveyor, planner, architect, landscape architect, court reporter, traffic expert (can be unlicensed), attorney, realtor, appraiser or other expert providing professional services (whether as an employee of the Town or otherwise engaged by the Town) to ensure that an application complies with the standards set forth in this ordinance and other experts whose testimony is in an area or in areas where the Board requires further information.

[Amended 12-16-2008 by Ord. No. 1930; 3-8-2022 by G.O. No. 2022-06]

2. Application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of developments under construction and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the Town. The charges shall be for the following services:

a. Reviews by professional personnel of applications and accompanying documents;

b. Issuance of reports by professional personnel to the Board setting forth recommendations resulting from the review of any documents submitted by the applicant;

c. Charges for any telephone conferences or meetings requested or initiated by the applicant, his attorney or any of his experts or by the Board or any of its professionals;

d. Review of documents submitted by the applicant not required by ordinance and issuance of reports relating thereto;

e. Review or preparation of easement documents, developers agreements, deeds or the like;

f. Preparation for and attendance at special meetings by professional personnel; and

[Amended 12-16-2008 by Ord. No. 1930]

g. The preparation of resolutions, including without limitation, resolutions pertaining to an application concerning which the resolution must contain a summary of two or more witnesses, including experts, testifying on behalf of the applicant in order for the resolution to contain adequate findings of fact and conclusions based thereon pursuant to § 4.10.

3. Professional charges may also include the costs of expert advice and/or testimony obtained by the Board for the purpose of corroborating testimony of the applicant's experts, or providing a separate review which the Board deems necessary to make an informed decision, provided that:

a. This provision shall not entitle the Town to reimbursement for the cost of expert advice and/or testimony at a regularly scheduled meeting of the Board, when such advice and/or testimony is provided in the expert's capacity as a full time or part time Town employee; and

b. The Board shall give prior notice to the applicant of its intention to obtain such additional expert advice or testimony and afford the applicant an opportunity to be heard as to the necessity for such additional advice or testimony and as to the definition of the limitations on the nature and extent thereof.

E. Exceptions and limitations. The following exceptions and limitations shall apply the charges for professional services pursuant to this article:

1. Exceptions. No applicant shall be responsible to reimburse the Town for any of the following:

a. Except as otherwise set forth in § 5.03D above, attendance by the Town's professional personnel employees at any regularly scheduled meeting of the Board; provided, however, that the Town shall be entitled to be reimbursed for attendance of its professional employees, including court reporters, secretaries, attorneys, etc., at special meetings of the Board which are called at the applicant's request. Nothing contained herein shall be construed as requiring the Board to grant an applicant's request to hold a special meeting.

b. [1]Except as otherwise set forth in § 5.03D above, the preparation of a resolution of memorialization setting forth the findings of fact and conclusions of the Board with respect to an application.

[1] Editor's Note: Former Subsection E1b, regarding the time spent by the Zoning Officer, was repealed 3-8-2022 by G.O. No. 2022-06. This ordinance also provided for the redesignation of former Subsection E1c as Subsection E1b.

2. Limitations. The following limitations shall apply to the charges for professional services:

a. Review fees shall be charged only in connection with an application for development presently pending before the Board, or review of compliance with conditions of approval, or review of requests for modification or amendment made by the applicant. A professional shall not review items which are subject to approval by any State governmental agency and not under Town jurisdiction, except to the extent consultation with a State agency is necessary due to the effect of State approvals upon the subdivision or site plan.

b. Inspection fees shall be charged only for actual work shown on a subdivision or site plan or required by an approving resolution. 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.

c. The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professionals or consultants including normal and typical expenses incurred in processing applications and inspecting improvements.

d. The Town or Board shall not bill the applicant, or charge any escrow account or deposit authorized herein for any Town clerical or administrative functions, overhead expenses, meeting room charges, or any other Town costs and expenses except as provided for in this section, nor shall a Town professional add any such charges to his bill.

e. If the Town retains a different professional or consultant in the place of the professional originally responsible for development application review, or inspection of improvements, the Town or Board shall be responsible for all time and expenses of the new professional to become familiar with the application or the project, and the Town or approving authority shall not bill the applicant or charge the deposit or the escrow account for any such services.

F. Rates of payment for professional services. If the salary, staff support and overhead for a professional are provided by the Town, the hourly rate charged to the deposit from said professional shall be at 200% of the sum of the products resulting from multiplying: 1) the hourly base salary, of each of the professionals by 2) the number of hours spent by the respective professional upon review of the application for the development or inspection of the developer's improvements, as the case may be. The hourly base salary shall be determined based upon each professional's annual salary as set forth annually by ordinance and divided by such professional's annual hours based on a thirty-five-hour work week. For other professionals, the charge shall be at the same rate as all other work of the same nature by the professional for the Town when fees are not reimbursed or otherwise imposed on applicants or developers. Rates for professional services shall be in accordance with a schedule of professional fees filed annually with the Board Secretary and maintained in the office of the Town Clerk for public inspection.

[Amended 12-16-2008 by Ord. No. 1930]

G. Vouchers for payment of professional services. Each payment charged to a deposit for the review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional. The processing of vouchers shall be in accordance with the following:

1. The voucher shall identify the personnel performing the service, and for each date the services are performed, the hours spent to 1/4 hour increments, the hourly rate and the expenses incurred.

2. All professionals shall submit vouchers to the Chief Financial Officer of the Town on a monthly basis in accordance with the schedules and procedures established by the Chief Financial Officer of the Town.

3. If the services are provided by a Town employee, the Town employee shall prepare and submit to the Chief Financial Officer of the Town a statement containing the same information as required on a voucher, on a monthly basis.

4. The professional shall send an informational copy of all vouchers or statements submitted to the Chief Financial Officer of the Town simultaneously to the applicant.

5. The Chief Financial Officer of the Town shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements, and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis, if monthly charges are $1,000 or less, or on a monthly basis if monthly charges exceed $1,000.

H. Appeals of charges. An applicant shall notify in writing the Town Council, with copies to the Chief Financial Officer of the Town, the Board and the professional, whenever the applicant disputes the charges made by a professional for service rendered to the Town in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to the Municipal Land Use Law. The following shall apply:

1. An applicant shall file an appeal within 45 days from receipt of the informational copy of the professional's voucher required by § 5.03G, except 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 Town statement of activity against the deposit or escrow account required by § 5.03G.5.

2. The Town Council, or its designee, shall within a reasonable time period attempt to remediate any disputed charges.

3. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the county construction board of appeals established under Section 9 of P.L. 1975, c.217 (C.52:27D-127) any charge to an escrow account or a deposit by any Town professional or consultant. An applicant or his authorized agent shall submit the appeal in writing to the county construction board of appeals. The applicant or his authorized agent shall simultaneously send a copy of the appeal to the Town, Board, and any professional whose charge is the subject of the appeal. The procedures followed by the county construction board of appeals shall be as set forth in N.J.S.A. 40:55D-53.2b and c.

4. 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.

5. During the pendence of any appeal, the Town or approving authority shall continue to process, hear, and decide the application for development, and to inspect the development in the normal course, and shall not withhold, delay, or deny reviews, inspections, signing of subdivision plats or site plans, the reduction or the release of performance and maintenance guarantees, the issuance of construction permits or certificates of occupancy, or any other approval or permit because an appeal has been filed or is pending under this subsection. The Chief Financial Officer of the Town may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed.

6. If a charge is disallowed after payment, the Chief Financial Officer of the Town shall reimburse the deposit or escrow account in the amount of any such disallowed charge or refund the amount to the applicant. If a charge is disallowed after payment to a professional or consultant who is not an employee of the Town, the professional or consultant shall reimburse the Town in the amount of any such disallowed charge.

§ 5.04 Inspection fees; required deposit.

[Amended 3-8-2022 by G.O. No. 2022-06]

The obligor shall reimburse the Town of Westfield for reasonable inspection fees paid to the Town Engineer for the inspection of improvements as set forth in § 5.05 of this article. Fees shall not exceed the sum of the amounts set forth in § 5.04A1 and § 5.04A2 of this article. Prior to the initiation of any construction approved pursuant to this ordinance, the developer shall deposit with the Board Secretary sufficient funds to reimburse the Town for inspection fees paid to the Town Engineer. Deposits shall be paid by cashier's check, certified check, or bank money order. The Town Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit. Deposits shall be as follows:

A. Not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of bonded improvements that are subject to a performance guarantee under this article; and

B. Not to exceed 5% of the cost of private site improvements that are not subject to a performance guarantee under this article, which cost shall be determined pursuant to § 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).

C. For those developments for which the inspection fees total less than $10,000, the fees may, at the option of the developer, be paid in two installments. The initial amount deposited in escrow by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Town Engineer for inspections, the developer shall deposit the remaining 50% of the inspection fees.

D. For those developments for which the inspection fees total $10,000 or greater, the fees may, at the option of the developer, be paid in four installments. The initial amount deposited in escrow by a developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Town Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees.

E. If the Town of Westfield determines that the amount in escrow for the payment of inspection fees, as calculated pursuant to this article, is insufficient to cover the cost of additional required inspections, the Town of Westfield may require the developer to deposit additional funds in escrow provided that the Town of Westfield delivers to the developer a written inspection escrow deposit request, signed by the Town 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.

F. Appeals for the amount charged for the inspection of improvements shall follow the procedures in § 5.03H.

§ 5.05 Guarantees required; surety; release.

[Amended 3-8-2022 by G.O. No. 2022-06]

Before filing of final subdivision plats or recording of minor subdivision deeds or as a condition of final site plan approval or as a condition to the issuance of a zoning approval pursuant to Subsection d. of § 52 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-65), the Town of Westfield may require and shall accept in accordance with the standards adopted herein and regulations adopted pursuant to § 1 of P.L. 1999, c. 68 (N.J.S.A. 40:55D-53a) for the purpose of assuring the installation and maintenance of certain on tract improvements, the furnishing of a guarantees in accordance with the following standards:

A. Form of guarantee. At least 10% of the guarantee shall be in the form of cash or a certified check made payable to the Town of Westfield. The balance of the guarantee shall be in the form of any security issued by an institution authorized to issue such securities in the State of New Jersey and which may be accepted by the Town and approved by the Town Attorney, including but not limited to surety bonds, cash and letters of credit; provided that the Town shall only accept an irrevocable letter of credit if it:

1. Constitutes an unconditional payment obligation of the issuer running solely to the Town for an express initial period of time of at least one year but no more than two years from the date of final approval;

2. Is in the amount determined by the developer and approved by the Town Engineer or Town Council, as applicable, as provided herein, less the amount of any other forms of guarantee furnished;

3. Is issued by a banking or savings institution authorized to do and doing business in the State of New Jersey; and

4. Permits the Town to draw upon the letter of credit if the obligor fails to furnish another letter of credit which complies with the provisions of this section 30 days or more in advance of the expiration date of the letter of credit or such longer period in advance thereof as is stated in the letter of credit.

B. Performance guarantees. The following standards shall apply to the administration of performance guarantees:

1. The developer shall furnish a performance guarantee in favor of the Town of Westfield in an amount not to exceed 120% of the cost of installation of only those 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, which cost shall be determined by the developer and approved by the Town Engineer, as appropriate, according to the method of calculation set forth in § 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4), for the following improvements as shown on the approved plans or plat: streets, pavement, gutters, curbs, sidewalks, street lighting, street trees, surveyor's monuments, as shown on the final map and required by the Map Filing Law, P.L. 1960, c. 141 (N.J.S.A. 46:23-9.9 et seq.; repealed by § 2 of P.L. 2011, c. 217) or N.J.S.A. 46:26B-1 through 8, water mains, sanitary sewers, community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements. The developer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee for review and approval by the Town Engineer, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.

2. The Town of Westfield may also require a performance guarantee to 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. At the developer's option, a separate performance guarantee may be posted for the privately owned perimeter buffer landscaping.

C. Temporary certificate of occupancy guarantees. The following standards shall apply to the administration of temporary certificate of occupancy guarantees:

1. In the event that the developer shall seek a temporary certificate of occupancy for a development, unit, lot, building, or phase of development, as a condition of the issuance thereof, the developer shall furnish a separate guarantee, referred to herein as a "temporary certificate of occupancy guarantee," in favor of the Town of Westfield in an amount equal to 120% of the cost of installation of only those improvements or items which remain to be completed or installed under the terms of the temporary certificate of occupancy and which are required to be installed or completed as a condition precedent to the issuance of the permanent certificate of occupancy for the development, unit, lot, building or phase of development and which are not covered by an existing performance guarantee. Upon posting of a temporary certificate of occupancy guarantee, all sums remaining under a performance guarantee, required pursuant to § 5.05B1, which relate to the development, unit, lot, building, or phase of development for which the temporary certificate of occupancy is sought, shall be released. The scope and amount of the temporary certificate of occupancy guarantee shall be determined by the Town Engineer. At no time may the Town of Westfield 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 Town Engineer 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.

D. Safety and stabilization guarantees. The following standards shall apply to the administration of safety and stabilization guarantees:

1. A developer shall furnish to the Town of Westfield a safety and stabilization guarantee, in favor of the Town of Westfield. At the developer's option, a safety and stabilization guarantee may be furnished either as a separate guarantee or as a line item of the performance guarantee. A safety and stabilization guarantee shall be available to the Town of Westfield 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: a) 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 b) Work has not recommenced within 30 days following the provision of written notice by the Town of Westfield to the developer of the Town of Westfield's intent to claim payment under the guarantee. The Town 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 Town shall provide written notice to a developer by certified mail or other form of delivery providing evidence of receipt.

2. The amount of a safety and stabilization guarantee for a development with bonded improvements in an amount not exceeding $100,000 shall be $5,000.

3. The amount of a safety and stabilization guarantee 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: $5,000 for the first $100,000 of bonded improvement costs, plus 2 1/2% 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.

4. The Town shall release a separate safety and stabilization guarantee to a developer upon the developer's furnishing of a performance guarantee which includes a line item for safety and stabilization in the amount required under this subsection.

5. The Town shall release a safety and stabilization guarantee upon the Town Engineer's determination that the development of the project site has reached a point that the improvements installed are adequate to avoid any potential threat to public safety.

E. Maintenance guarantees. The developer shall post with the Town of Westfield, prior to the release of a performance guarantee required pursuant to § 5.05B1, § 5.05B2, or both § 5.05B1 and § 5.05B2. Except as specifically provided otherwise below, maintenance guarantees shall be administered in the same manner as performance guarantees as provided by this article.

1. The developer shall post with the Town, upon the inspection and issuance of final approval of the following private site improvements by the Town Engineer, a maintenance guarantee in an amount not to exceed 15% of the cost of the installation of the following private site improvements: stormwater management basins, in-flow and water quality structures within the basins, and the out-flow pipes and structures of the stormwater management system, if any, which cost shall be determined according to the method of calculation set forth in § 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4).

2. 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.

F. Acceptance of guarantee from successor developer. A successor developer must furnish a replacement guarantee as a condition to the approval of a permit update under the State Uniform Construction code for the purpose of updating the name and address of the owner of property on a construction permit.

1. The governing body or approving authority shall not accept a replacement guarantee without securing:

a. Written confirmation from the new obligor that the intent of the new obligor is to furnish a replacement guarantee, relieving the predecessor obligor and surety, if any, of any obligation to install improvements; and

b. Written verification from the Town Engineer that the replacement guarantee is of an amount sufficient to cover the cost of the installation of improvements, but not to exceed 120% of the cost of the installation, which verification shall be determined consistent with section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53).

2. An approving authority shall notify the governing body whenever it accepts a replacement guarantee. Notice shall contain a copy of the written confirmation of the new obligor's intent to furnish a replacement performance guarantee and the Town Engineer's written verification of the sufficiency of the amount of that replacement performance guarantee.

3. Within 30 days after receiving notice from the approving authority of its acceptance of a replacement guarantee, the governing body, by resolution, shall release the predecessor obligor from liability pursuant to its performance guarantee.

G. Exception for improvements related to other jurisdictions. In the event that other governmental agencies or public utilities are or will be the owner of 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 Town for such utilities or improvements.

H. Time allowed for completion of improvements. Performance guarantees shall state the time period within which all improvements are to be installed by the developer. No performance guarantee shall run for a term longer than two years, except as provided otherwise by this article.

I. Extension of time allowed for completion of improvements. The time allowed for installation of the bonded improvements for which the performance guarantee has been provided may be extended by the governing body 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 developer and approved by the Town Engineer according to the method of calculation set forth in § 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4) as of the time of the passage of the resolution.

J. Failure to complete improvements within time specified. If the required bonded improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Town of Westfield for the reasonable cost of the improvements not completed or corrected, and the Town 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 (N.J.S.A. 40A:11-1 et seq.).

K. Release of performance guarantee. Release of performance guarantees shall be in accordance with the following procedures:

1. Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the governing body in writing, by certified mail addressed in care of the Municipal Clerk, that the Town Engineer prepare, in accordance with the itemized cost estimate prepared by the developer and approved by the Town Engineer and appended to the performance guarantee pursuant to Subsection B of this section, a list of all uncompleted or unsatisfactory completed bonded improvements. If such a request is made, the obligor shall send a copy of the request to the Town Engineer. The request shall indicate which bonded improvements have been completed and which bonded improvements remain uncompleted in the judgment of the obligor. Thereupon the Town Engineer shall inspect all bonded improvements covered by obligor's request and shall file a detailed list and report, in writing, with the governing body, 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 Town Engineer shall state, in detail, with respect to each bonded 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 bonded improvement determined to be unsatisfactory. The report prepared by the Town Engineer shall identify each bonded 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 bonded improvement, in accordance with the itemized cost estimate prepared by the Town Engineer and appended to the performance guarantee pursuant to Subsection B of § 5.05.

3. The governing body, by resolution, shall either approve the bonded improvements determined to be complete and satisfactory by the Town Engineer, or reject any or all of these bonded 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 by the developer and approved by the Town Engineer and appended to the performance guarantee pursuant to Subsection B of this § 5.05. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Town Engineer. Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee with respect to those approved bonded improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the total performance guarantee and safety and stabilization guarantee posted may be retained to ensure completion and acceptability of all improvements. The safety and stabilization guarantee shall be reduced by the same percentage as the performance guarantee is being reduced at the time of each performance guarantee reduction. For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved bonded improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the engineer and appended to the performance guarantee pursuant to this article, including any contingency factor applied to the cost of installation. If the sum of the approved bonded improvements would exceed 70% of the total amount of the performance guarantee, then the Town of Westfield may retain 30% of the amount of the total performance guarantee and safety and stabilization guarantees to ensure completion and acceptability of bonded improvements, as provided above, except that any amount of the performance guarantee attributable to bonded improvements for which a temporary certificate of occupancy guarantee has been posted shall be released from the performance guarantee even if such release would reduce the amount held by the Town of Westfield below 30%.

L. Failure of Municipal Engineer or Town Council to act. If the Town Engineer or Town Council fails to act on the request for release of a performance guarantee within the time required herein, the obligor may apply to the court in the manner provided below; provided that nothing herein shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the Town Council or the Town Engineer.

1. If the Town Engineer fails to send or provide the list and report as requested by the obligor pursuant to Subsection K of this section within 45 days from receipt of the request, the obligor may apply to a court of competent jurisdiction in a summary manner for an order compelling the Town 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.

2. If the governing body fails to approve or reject the bonded improvements determined by the Town 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 Town Engineer's list and report, the obligor may apply to a court of competent jurisdiction 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 Town Engineer and appended to the performance guarantee pursuant to Subsection B of § 5.05; 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 Town of Westfield 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 developer has furnished a safety and stabilization guarantee, the Town of Westfield may retain cash equal to the amount of the remaining safety and stabilization guarantee.

M. Procedure for rejected bonded improvements. 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.

N. Right to contest. 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 Town Engineer.

O. Final approval by stages or sections of development. In the event that final approval is by stages or sections of development pursuant to Subsection a of § 29 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-38), the provisions of this section shall be applied by stage or section.

P. Improvements dedicated to the Town of Westfield. To the extent that any of the improvements have been dedicated to the Town of Westfield on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to this article, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Town Engineer.

§ 5.06 Administration of deposits and escrows.

Deposits received for professional services employed by the Town to review applications for development, for Town inspection fees in accordance with this article, or to satisfy the guarantee requirements of this article shall be administered in accordance with the following provisions:

A. Collection, processing and maintenance of deposits. All funds shall be collected by the Board Secretary. The Secretary of the Board shall maintain account records, process invoices, etc. for the Board. The actual escrow deposits shall be maintained by the Town Treasurer.

B. Deposits to be held in escrow. Whenever an amount of money shall be deposited by an applicant with the Town, 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 article, shall continue to be the property of the applicant and shall be held in trust by the Town. Deposits received pursuant to this article shall be held in escrow and deposited in a banking institution or savings and loan association in New Jersey insured by an agency of the federal government, or any other fund or depository approved for such deposits by the State of New Jersey. Such deposits shall be placed in an account bearing interest at the minimum rate currently paid by the institution or depository on time or savings deposits. The Town shall notify the applicant in writing of the name and address of the institution or depository in which the deposit is made and the amount of the deposit.

C. Refund of deposits; interest. Any of the funds remaining in the deposit, excluding interest, upon completion of the purpose for which the deposit was made shall be returned to the applicant and the account shall be terminated. For deposits over $5,000 placed in an interest bearing account pursuant to this article, refunds of interest shall be made as follows:

1. The Town shall not be required to refund an amount of interest paid on a deposit which does not exceed $100 for the year.

2. If the amount of interest exceeds $100 for the year, that entire amount shall belong to the applicant and shall be refunded to him by the Town annually or at the time the deposit is repaid or applied to the purposes for which it was deposited, as the case may be; except that the Town may retain for administrative expenses a sum equivalent to no more than 1/3 of that entire amount, which shall be in lieu of all other administrative and custodial expenses.

§ 5.07 Payment of fees required prior to approval.

No subdivision plat or deed or site plan shall be signed, nor shall any zoning approval, building permit, certificate of occupancy or any other type of permit be issued with respect to any approved application for development until:

A. All applicable fees have been paid;

B. All bills for reimbursable services have been received by the Town from professional personnel rendering services in connection with such application, and the payment of such bills has been approved by the Town; and

C. The applicant has reimbursed the Town for the excess of all bills for professional services over the escrow amount otherwise herein provided for.