Borough of Somerville, NJ Article V FEES, DEPOSITS, GUARANTEES AND OTHER PAYMENTS

§ 102-21 Fees for Development Applications or Appeals.

The following fees shall be required for any application, appeal or other matter pursuant to this chapter. Fees shall be nonrefundable and shall be paid by cashier's check, certified check, bank money order or cash to the Board Secretary. In the case of proposals requiring a combination of approvals, such as subdivision, site plan and/or variance(s), the applicant shall pay a fee equal to the sum of the fees for each required approval. All approvals granted by the Board shall be conditional upon the payment of the fees required herein. If, after the date of an approval, the applicant shall fail to pay any and all outstanding fees, the Board may, at its discretion, void any approval which may have been granted.

§ 102-22 Schedule of Administrative Fees.

[Amended 12-17-01 by Ord. No. 2118; 06-16-03 by Ord. No. 2143; 12-16-2019 by Ord. No. 2595]

There is hereby established in connection with the various applications for development and other matters which are the subject of this chapter the following schedule of administrative fees:

A. Filing fees for development applications. Filing fees shall be used to defray the administrative costs of processing the application or appeal, and shall be as set forth below:

(1)	Concept site plans and subdivisions (The filing fee for a concept plan for development shall be credited against the filing fee otherwise required for subdivision or site plan approval after review by the Planning Board of the concept plan.)	$500
(2)	Minor subdivisions	$1,500
(3)	Preliminary major subdivisions	$500 per lot
(4)	Final major subdivisions	$250 per lot
(5)	Minor site plans:
	(Public hearing, except signs)	$500
	(Public hearing, signs only)	$500
	(No public hearing, Site Plan Waiver Committee)	$75
	(No public hearing, Architectural Review Board)	$25
(6)	Preliminary major site plans	$2,000
(7)	Final major site plans:
	(If heard at same hearing as preliminary major site plan)	$750
	(If approved at hearing subsequent to preliminary major site plan)	$1,500
(8)	Appeals alleging error by administrative officer (§ 102-33)	$150
(9)	Requests for interpretation or other special questions (§ 102-34)	$250
(10)	Appeals for issuance of permit in reserved locations (§§ 102-35,  102-36)	Same as "C" variance
(11)	Appeals for sign variances	$100 each, $300 max.
(12)	Appeals for "C" variances (§ 102-37), except sign variances:
	(If not part of site plan or subdivision, or if bifurcated)	$200.00 each, $400.00 max.
	(If reviewed at same time as site plan or subdivision)	$500 each, $1,000 max.
(13)	Appeals for "D" variances (§ 102-38)	$1,000 each, $3,000 max.
(14)	Appeals to Council of "D" variance approvals (§ 102-39)	$1,000
(15)	Amended approval of site plan, subdivision, variance or other approval of the Planning Board or Board of Adjustment (§ 102-46D)	As required herein for minor or major applications, but classified as if the amendments alone were a new application
(16)	Extension of period of approval for site plan, subdivision or variance	$500

B. Other fees.

(1)	List of property owners within 200 feet of subject property (§ 102-12C)	$10
(2)	Copy of governing body decision (§ 102-39K)	$10
(3)	Publication of governing body decision (§ 102-39L)	Cost of publication
(4)	Certificate of subdivision approval (§ 102-62D)	$10
(5)	Transcript or tape of public hearing (§ 102-18)	Cost of tape or transcript
(6)	Sign permit fee [unless specifically exempted by § 102-28C(1) or (2)]	$50 (including up to two signs per application)
(7)	Certification of nonconforming use or structure [§ 102-121B(7)]:
	(If reviewed only by Zoning Officer)	$100
	(If reviewed by Board of Adjustment)	$300
(8)	Zoning permit	$25
(9)	Special Board meeting at request of applicant	$1,500

§ 102-23 Payment for Professional Services.

[Amended 12-17-2001 by Ord. No. 2118; 6-16-2003 by Ord. No. 2143; 12-16-2019 by Ord. No. 2595]

The Chief Financial Officer of the Borough shall make all of the payments to professionals for services rendered to the Borough or approving authority 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 chapter. At the time of filing of an application for development, appeal, or other matter pursuant to this chapter, 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 Borough 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 Borough in an escrow account if required pursuant to § 102-26. 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. Notwithstanding the above, if the Board determines that professional services are not required in order to process and review the application, no deposit shall be required.

A. Schedule of deposits. 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 a greater initial deposit than indicated on the following schedule is necessary to reimburse the anticipated cost of professional services on a particular application, such as circulation-intensive sites requiring the services of a traffic engineering consultant, the applicant shall be required to deposit said greater amount.

(1)	Concept site plans and subdivisions	$1,000
(2)	Minor subdivisions	$500 per lot
(3)	Preliminary major subdivisions	$500 per lot
(4)	Final major subdivisions	$300 per lot
(5)	Minor site plans
	(Public hearing)	$2,000
	(If reviewed only by Site Plan Waiver Committee or Architectural Review Board)	None
(6)	Preliminary major site plans
	$2,500 for first 20,000 square feet of site area, plus
	$1,000 for each additional 20,000 square feet of site area, plus
	$2,500 for first 10,000 square feet of gross floor area, plus
	$1,000 for each additional 10,000 square feet of gross floor area, up to a maximum of $ 5,000 for additional gross floor area above 10,000 square feet.
(7)	Final major site plans
	(If reviewed at same time as preliminary major site plan)	None
	(If reviewed subsequent to preliminary major site plan)
	$2,500 for first 20,000 square feet of site area, plus
	$500 for each additional 20,000 square feet of site area, plus
	$500 for first 10,000 square feet of gross floor area, plus
	$500 for each additional 10,000 square feet of building gross floor area, up to a maximum of $ 2,500 for additional gross floor area above 10,000 square feet.
(8)	Appeals alleging error by administrative officer (§ 102-33)	$2,000
(9)	Requests for interpretation or other special questions (§ 102-34)	$2,000
(10)	Appeals for issuance of permit in reserved locations (§ 102-35, § 102-36)	Same as "C" variance
(11)	Appeals for sign variances	$500 (any or all)
(12)	Appeals for "C" variances (§ 102-37), except sign variances:
	(If not part of site plan or subdivision, or if bifurcated)	$500 each, $1,500 max.
	(If reviewed at same time as site plan or subdivision)	$500 each, $1,500 max.
(13)	(Reserved)
(14)	Appeals for "D" variances (§ 102-38)	$4,000 each, $8,000 max.
(15)	Appeals to Council of "D" variance approvals (§ 102-39)	$2,500
(16)	Amended approval of site plan, subdivision, variance or other approval of the Planning Board or Board of Adjustment (§ 102-46D)	As required herein for minor or major applications, but classified as if the amendments alone were a new application
(17)	Extension of period of approval for site plan, subdivision or variance	$1,000
(18)	Certification of nonconforming use or structure, (if reviewed by Board of Adjustment) (§ 102-121B(7)	$2,500
(19)	Special Board meeting at request of applicant	$3,000

B. Depletion of deposits. If an escrow account or deposit contains insufficient funds to enable the Borough or approving authority to perform required application reviews or improvement inspections, the Chief Financial Officer of the Borough 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 10 days post a deposit to the account in an amount to be agreed upon by the Borough or approving authority 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 required funds in Subsection B above maintaining the deposit or escrow account for professional services are not deposited in a timely manner, the Board Secretary shall notify the Board having jurisdiction over the application. No further action shall be taken on the application until the deposits have been made by the applicant as required above. In the event that the time for action by the Board, or any extension thereof as provided by this chapter, shall expire prior to the payment of the required deposits, the Board may, at its discretion, request an extension of time for action or may 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) 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 Borough.

(2) Review fees shall be charged only in connection with an application for development presently pending before the approving authority or upon 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 Borough jurisdiction except to the extent consultation with a state agency is necessary due to the effect of state approvals in the subdivision or site plan.

(3) 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.

(4) The only costs that shall be added to any such charges in Subsections D(1) through (3) above 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.

(5) The Borough or approving authority shall not bill the applicant, or charge any escrow account or deposit authorized herein for any Borough clerical or administrative functions, overhead expenses, meeting room charges, or any other Borough costs and expenses except as provided for in this section, nor shall a Borough professional add any such charges to his or her bill. [

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

E. Rates of payment for professional services. If the salary, staff support and overhead for a professional are provided by the Borough, the charge shall not exceed 200% of the sum of the products resulting from multiplying 1) the hourly base salary, which shall be established annually by ordinance, of each of the professionals by 2) the number of hours spent by the respective professional upon review of the application for development or inspection of the developer's improvements, as the case may be. For other professionals, the charge shall be at the same rate as all other work of the same nature by the professional for the Borough 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 Borough Clerk for public inspection.

F. 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 one-quarter-hour increments, the hourly rate and the expenses incurred.

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

(3) If the services are provided by a Borough employee, the Borough employee shall prepare and submit to the Chief Financial Officer of the Borough 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 Borough simultaneously to the applicant.

(5) The Chief Financial Officer of the Borough 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.

G. Appeals of charges. An applicant shall notify in writing the Borough Council with copies to the Chief Financial Officer of the Borough, the approving authority and the professional whenever the applicant disputes the charges made by a professional for service rendered to the Borough 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 forty-five (45) days from receipt of the informational copy of the professional's voucher required by § 102-23F(4), except that if the professional has not supplied the applicant with an informational copy of the voucher, then the applicant shall file his or her appeal within sixty (60) days from receipt of the Borough statement of activity against the deposit or escrow account required by § 102-23F(5).

[Amended 12-17-01 by Ord. 2118]

(2) The Borough 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 Borough professional or consultant, or the cost of the installation of improvements estimated by the Borough Engineer pursuant to § 102-24A, § 102-25A(1) and § 102-25B(1). An applicant or his or her authorized agent shall submit the appeal in writing to the county construction board of appeals. The applicant or his or her authorized agent shall simultaneously send a copy of the appeal to the Borough, approving authority, 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.

[Amended 12-17-01 by Ord. 2118]

(4) An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six (6) 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 Borough 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 Borough may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed. If a charge is disallowed after payment, the Chief Financial Officer of the Borough 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 Borough, the professional or consultant shall reimburse the Borough in the amount of any such disallowed charge.

H. Closing of deposits and escrow accounts. The following close-out procedure shall apply to all deposits and escrow accounts established under the Municipal Land Use Law and this chapter:

(1) In the case of application review escrows and deposits, the close-out of deposits and escrow accounts shall commence after the approving authority has granted final approval and signed the subdivision plat or site plan, or after the authority has denied the application or after the applicant has formally withdrawn the application. In the case of improvement inspection escrows and deposits, the close-out of deposits and escrow accounts shall commence after the improvements have been approved as provided in § 102-25A(7).

(2) The applicant shall send written notice by certified mail to the Chief Financial Officer of the Borough and the approving authority, and to the relevant Borough professional, that the application is completed, denied or withdrawn, or the improvements are completed, as the case may be.

(3) After receipt of such notice, the professional shall render a final bill to the chief financial officer of the Borough within thirty (30) days, and shall send a copy simultaneously to the applicant.

(4) The Chief Financial Officer of the Borough shall render a written final accounting to the applicant on the uses to which the deposit was put within forty-five (45) days of receipt of the final bill. Any balances remaining in the deposit or escrow account, including interest in accordance with § 102-26, shall be refunded to the developer along with the final accounting.

§ 102-24 Inspection Fees.

The developer shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the inspection of improvements required pursuant to this chapter. Prior to the initiation of any construction approved pursuant to this chapter, the developer shall deposit with the Board Secretary sufficient funds to reimburse the Borough for inspection fees paid to the Borough Engineer. Deposits shall be paid by cashier's check, certified check, bank money order or cash. The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit. Deposits shall be as set forth in Subsection A below. The following additional provisions shall apply to inspection fees:

A. Amount of deposits for inspection fees. Deposits for inspection fees shall be five hundred dollars ($500) or five percent (5%) of the cost of improvements to be inspected, whichever is greater. For purposes of administering this provision, the cost of improvements shall be estimated by the Borough Engineer based on documented construction costs for public improvements prevailing in the general area of the Borough. Appeals of the required deposit amount shall be made in accordance with the procedures set forth in § 102-23G.

B. Payment of deposits by installment. The developer shall have the option of paying the required inspection fee deposits by installment, as set forth below:

(1) For those developments for which the reasonably anticipated fees are less than ten thousand dollars ($10,000), fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be fifty percent (50%) of the reasonably anticipated fees. When the balance on deposit drops to ten percent (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 fifty percent (50%) of the anticipated inspection fees.

(2) For those developments for which the reasonably anticipated fees are ten thousand dollars ($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 twenty-five percent (25%) of the reasonably anticipated fees. When the balance on deposit drops to ten percent (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 make additional deposits of twenty-five percent (25%) of the reasonably anticipated fees.

§ 102-25 Performance and Maintenance Guarantees.

Before recording of final subdivision plats or as a condition of final site plan approval or as a condition to the issuance of a zoning permit, the Borough agency may require and shall accept performance and maintenance guarantees for the purpose of assuring the installation and maintenance of on-tract improvements. Such performance and maintenance guarantees shall be in accordance with the following provisions:

A. Performance guarantees. The following provisions shall apply to the administration of performance guarantees:

(1) Amount of performance guarantee. The performance guarantee for the installation of those improvements required shall be in favor of the Borough of Somerville in an amount equal to one hundred twenty percent (120%) of the cost of such improvements. The cost of said improvements shall be determined by the Borough Engineer based on documented construction costs for public improvements prevailing in the general area of the Borough. The Borough Engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which estimate shall be appended to each performance guarantee posted by the obligor.

(2) Appeal of disputed performance guarantee amounts. The developer may appeal the Borough Engineer's estimate of the cost of improvements for purposes of furnishing a performance guarantee. Such appeal shall be made in accordance with the procedures set forth in § 102-23G.

(3) Form of guarantee. At least ten percent (10%) of the performance guarantee shall be in the form of cash or a certified check made payable to the Borough of Somerville, except as provided otherwise in § 102-58B. The balance of the performance 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 Borough and approved by the Borough Attorney, including but not limited to surety bonds, cash and letters of credit; provided that the Borough shall only accept an irrevocable letter of credit if all of the following are complied with:

[Amended 12-17-01 by Ord. 2118]

(a) The letter constitutes an unconditional payment obligation of the issuer running solely to the Borough for an express initial period of time in the amount determined pursuant to this chapter.

(b) The letter is issued by a banking or savings institution authorized to do and doing business in the State of New Jersey.

(c) The letter is for a period of at least one year.

(d) The letter permits the Borough 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 thirty (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.

(4) Time allowed for completion of improvements. The performance guarantee 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 eighteen (18) months, except as provided otherwise by this chapter.

(5) Extension of time allowed for completion of improvements. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council 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 one hundred twenty percent (120%) of the cost of the installation at the time of the resolution. The cost of installation shall be determined by the Borough Engineer as provided herein for the initial cost determination.

(6) Failure to complete improvements within time specified. 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. The Borough may, either prior to or after receipt of the proceeds thereof, complete such improvements or use said funds to restore the property to a safe condition so that the subject property in its unfinished development state does not adversely affect the public safety or adversely impact the environment. Such completion or correction of improvements shall be subject to the public bidding requirements of the "Local Public Contracts Law".

(7) Release of performance guarantee. Release of performance guarantees shall be in accordance with the following procedure:

(a) 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 Borough Council that the Borough Engineer prepare a list of all uncompleted or unsatisfactory completed improvements. The request to the Borough Council shall be made in writing by certified mail addressed to the Borough Clerk, with a copy of the request to be sent to the Borough Engineer. The request shall indicate which improvements have been completed and which improvements remain uncompleted in the judgment of the obligor.

(b) Upon receiving the obligor's request, the Borough Engineer shall inspect all improvements covered by the obligor's request and shall file a detailed list and report, in writing, with the Borough Council, and shall simultaneously send a copy thereof to the obligor not later than forty-five (45) days after receipt of the obligor's request.

(c) The detailed list prepared by the Borough Engineer shall be in accordance with the itemized cost estimate prepared by the Borough Engineer, which estimate shall have been appended to the performance guarantee as required herein. 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.

(d) 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. The recommended reduction shall be in accordance with the itemized cost estimate prepared by the Borough Engineer, which cost estimate shall have been appended to the performance guarantee as required herein.

(e) The Borough Council, by resolution, shall either approve the improvements determined to be complete and satisfactory by the Borough Engineer, or reject any or all of these improvements. The cause for any rejection shall be stated in the Council's resolution. If any portion of the required 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 required herein, shall be followed.

(f) For accepted improvements, the Borough Council shall approve and authorize the amount of reduction to be made in the performance guarantee relating to the improvements accepted. Any authorized reduction shall be in accordance with itemized cost estimate prepared by the Borough Engineer, which cost estimate shall have been appended to the performance guarantee as required herein. The resolution shall be adopted not later than forty-five (45) days after receipt of the list and report prepared by the Borough Engineer.

(g) Any partial reduction granted in the performance guarantee as provided herein 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.

(h) Upon adoption of the resolution by the Borough Council, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that thirty percent (30%) of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

(8) Failure of Borough Engineer or Council to act. If the Borough Engineer or Borough 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 Borough Council or the Borough Engineer.

(a) If the Borough Engineer fails to send or provide the list and report as requested by the obligor as required herein within forty-five (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. The cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(b) If the Borough Council fails to approve or reject the improvements determined by the Borough Engineer to be complete and satisfactory or reduce the performance guarantee for the complete and satisfactory improvements within forty-five (45) days from the receipt of the Borough Engineer's 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, which cost estimate shall have been appended to the performance guarantee as required herein. The cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

B. Maintenance guarantees. After final acceptance of required improvements, a maintenance guarantee shall be required to be posted with the Borough. Except as specifically provided otherwise below, maintenance guarantees shall be administered in the same manner as performance guarantees as provided by this chapter.

(1) Amount of maintenance guarantee. The maintenance guarantee shall be in favor of the Borough of Somerville in an amount equal to fifteen percent (15%) of the cost of such improvements. The cost of said improvements shall be determined by the Borough Engineer in the same manner as provided herein for performance guarantees. The developer may appeal the Borough Engineer's estimate of the cost of improvements for purposes of furnishing a maintenance guarantee. Such appeal shall be made in accordance with the procedures set forth in § 102-23G.

(2) Form of guarantee. The maintenance 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 Borough and approved by the Borough Attorney, including but not limited to surety bonds, cash and letters of credit; provided that acceptance of irrevocable letters of credit shall be subject to the same conditions as provided herein for performance guarantees.

(3) Time required for maintenance guarantee. The maintenance guarantee shall be required to run for a period of two (2) years, which shall be stated in the guarantee.

C. Exception for improvements related to other jurisdictions. In the event that other governmental agencies or public utilities automatically will 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.

D. Final approval by stages or sections of development. In the event that final approval is by stages or sections of development as provided by this chapter, the provisions of this section shall be applied by stage or section of development.

§ 102-26 Administration of Deposits.

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

A. Deposits to be held in escrow. Whenever an amount of money in excess of five thousand dollars ($5,000) shall be deposited by an applicant with the Borough, 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 chapter, shall continue to be the property of the applicant and shall be held in trust by the Borough. 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 Borough 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.

B. Refund of deposits; interest. Any of the funds remaining in the deposit 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 five thousand dollars ($5,000) placed in an interest bearing account pursuant to this chapter, refunds of interest shall be made as follows:

(1) The Borough shall not be required to refund an amount of interest paid on a deposit which does not exceed one hundred dollars ($100) for the year.

(2) If the amount of interest exceeds one hundred dollars ($100) for the year, that entire amount shall belong to the applicant and shall be refunded to him or her by the Borough 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 Borough may retain for administrative expenses a sum equivalent to no more than one-third (1/3) of that entire amount, which shall be in lieu of all other administrative and custodial expenses.

[Amended 12-17-01 by Ord. 2118]

§ 102-27 Exemptions.

Projects of the Borough of Somerville and the Borough of Somerville Board of Education shall be exempt from the payment of any fees required by this Article.