Borough of Watchung, NJ APPLICATION FEES, GUARANTEES, INSPECTIONS AND OFF-TRACT IMPROVEMENTS

[Ord. No. OR:09/01 § 28-901]

Every application for development shall be accompanied by a certified check or checks payable to the Borough of Watchung in accordance with the following schedule of "Administrative Charges" and "Escrow Account Deposits." Where one (1) application for development includes several approval requests, the sum of the individually required "Administrative Charges" and "Escrow Account Deposits" shall be paid, with separate checks for the total "Administrative Charges" and for the total "Escrow Account Deposits." Fees for copies of requested items, special meetings, and other items also are included in the fee schedule.

Type of Application or Request	Administrative Charges	Escrow Account Deposits*
1. Informal Reviews
(a) One (1) informal fifteen(15) minute appearance	None required	None required
(b) Any additional appearance.	$200	$1,000
2. Subdivisions		1-3 lots	$1,000
(a) Minor Subdivision Plat	$150	4-10 lots	$2,000
(b) Sketch Plat	$150 plus $10.00 per lot	11-25 lots	$3,000
(c) Preliminary Major Subdivision Plat	$350	26-50 lots	$5,000
Plus per each lot (1-10 lots)	$25	51-100 lots	$7,500
11-20 lots	$30	Over 100 lots	$15,000
21-50 lots	$35
Over 50 lots	$40
(d) Final Major Subdivision Plat	$200	1-3 lots	$500
Plus per each lot	$10	4-10 lots	$1,000
		11-25 lots	$1,500
		26-50 lots	$2,500
		51-100 lots	$3,750
		Over 100 lots	$7,500
(e) Amended Minor, Preliminary Major Subdivision and/or Final Major Subdivision Plat	$300	The balance required to replenish the escrow account to the amount of the original deposit.
(f) Request for reapproval or extension of time	$300	$500
3. Site Plans		1-3 units	$1,000
(a) Minor Site Plan (Residential)	$150	4-10 units	$2,000
		11-25 units	$3,000
		26-50 units	$5,000
		51-100 units	$7,500
		Over 100 units	$15,000
(b) Preliminary Major Site Plan Residential)	$450 plus $25 per dwelling unit
(c) Final Major Site Plan (Residential)	$250	1-3 units	$500
		4-10 units	$1,000
		11-25 units	$1,500
		26-50 units	$2,500
		51-100 units	$3,750
		Over 100 units	$7,500
(d) Minor Site Plan (Nonresidential)	$350	$1,000
(e) Preliminary Major Site Plan (Nonresidential)
Building area — 10,000 sq. ft. or less	$500	$3,000
Building area — 10,001 sq. ft. to 50,000 sq. ft.	$1,000	$10,000
Building area — 50,001 sq. ft. to 100,000 sq. ft.	$2,000	$20,000
Building area — More than 100,000 sq. ft.	$3,000	$25,000
(f) Final Major Site Plan (Nonresidential)		One-third the original escrow fee paid at the time of preliminary plan application
Building area — 10,000 sq. ft. or less	$250
Building area — 10,001 sq. ft. to 50,000 sq. ft.	$500
Building area — More than 50,000 sq. ft.	$1,000
(g) Amended Minor, Preliminary Major and/or Final Major Site Plan	$300	The balance required to replenish the escrow account to the amount of the original deposit.
(h) Request for reapproval or extension of time	$300	$500
4. Conditional Uses	$300	$500/acre or part thereof in addition to any fees required for site plan or subdivision review
5. Variances
(a) Appeals (40:55D-70a)	$100	$400 each
(b) Interpretation (40:55D-70b)	$100	$400 each
(c) Bulk (40:55D-70c)	$200 per application	$400 first variance plus $50/ each additional variance
(d) Use and Other "d" Variances (40:55D-70d)	$200	$1,000
(e) Permit (40:55D-34 & 35)	$200	$500
6. Waivers	$100	$125/first waiver plus $25/each additional waiver
7. Requested Special Meeting of Planning or Zoning Board	$1,000	$1,000
8. Certified List of Property Owners or Certified List of Public Utilities	$0.25/name or $10.00, whichever is greater, subject to applicable law.	None required
9. Copy of Minutes, Resolutions Decisions	As provided for in the Open Public Records Act or applicable law.	None required
10. Transcription of Meeting Proceedings	As provided for in the Open Public Records Act or applicable law.	None required
11. Copy of audio reproduction of Public Hearing	As provided for in the Open Public Records Act or applicable law.	None required
12. Subdivision Approval Certificate	$50/Certificate	None required
13. Certificate of Nonconformity [N.J.S.A. 40:55D-68]	$50/Certificate	None required
14. Zoning Permit	$35/Permit	None required

* Escrow fees shall not include lots or units restricted to affordable housing as defined in this chapter.[1]

[1]

Editor's Note: See § 28-1002.

The administrative charges are flat fees to cover administrative expenses and are nonrefundable.

The escrow account deposits noted in this section are required to pay for the costs of professional services including engineering, planning, legal and other expenses connected with the review of submitted materials, including any traffic engineering review or other special analysis related to the Borough's review of the submitted materials, or any necessary studies regarding off-tract improvements. The review escrow shall be deposited by the Chief Financial Officer of the Borough, or his/her designee and administered in accordance with § 28-903 and the requirements of the MLUL.

An applicant is responsible to reimburse the Borough for all expenses of professional personnel incurred and paid by the Borough for the review process of an application for development before a municipal agency, such as, but not limited to:

Charges for reviews by professional personnel of applications, plans and accompanying documents currently pending before the municipal agency, or the review of an applicant's compliance with the conditions of any approval to an application for development by a municipal agency, or the review of any requests made by the applicant for modifications or amendments to the submitted material, provided that the professional shall not review items which are subject to approval by any State governmental agency and not under municipal jurisdiction, except to the extent consultation with the State agency is necessary due to the effect of State approvals on the proposed subdivision or site plan.

Issuance of reports by professional personnel to the municipal agency setting forth recommendations resulting from the review of any documents submitted by the applicant.

Charges for any telephone conference or meeting requested or initiated by the applicant, his attorney or any of his experts or representatives.

Review of additional documents submitted by the applicant and issuance of reports relating thereto.

Review or preparation of easements, developer's agreements, deeds, approval resolutions, or the like.

Preparation for and attendance at all meetings by professionals serving the Board, such as the Attorney, Engineer and Planner, or other experts as required.

The cost of expert advice or testimony obtained by the municipal agency for the purpose of corroborating testimony of applicant's experts.

Actual out-of-pocket expenses incurred in the process of reviewing the applications, plans and accompanying documents.

Each applicant shall agree to pay all reasonable costs for professional review of the application. All such costs for review must be paid before any approved plat, plan or deed is signed and before any zoning permit, construction permit, certificate of occupancy, and/or other permit is issued.

Payment by the Borough of any bill rendered by a professional to the municipality with respect to any service for which the municipality is entitled to reimbursement under this chapter shall in no way be contingent upon receipt by the municipality of reimbursement from the applicant, nor shall any payment to a professional be delayed pending the reimbursement from an applicant.

If an applicant desires a court reporter, the cost for taking testimony and transcribing it and providing a copy of the transcript to the Borough shall be at the expense of the applicant who also shall arrange for the reporter's attendance.

28-902 IMPROVEMENTS, GUARANTEES, START OF CONSTRUCTION AND INSPECTIONS.

[Ord. No. OR:09/01 § 28-902; Ord. No. 2018-16]

For purposes of this § 28-902, the term "public improvements" shall include 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," N.J.S.A. 46:23-9.9 et seq., water mains, sanitary sewers community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements.

Requirements Specific to Major Subdivisions.

No final major subdivision plat (whether for an entire tract or a section thereof) shall be recorded unless:

The Borough Engineer has certified to the Planning Board or Zoning Board of Adjustment, as the case may be, that all public improvements required by the resolution of preliminary approval have been satisfactorily completed; or

The developer has entered into a developer's agreement with the Borough, in a form satisfactory to the Borough Attorney and authorized by the Borough Council, requiring the installation and maintenance by the developer and its successors in interest of the public improvements, imposing such limitations, and/or staging of, the development of the subdivision as are necessary to ensure orderly construction of the public improvements, and assuring the installation of the public improvements on or before an agreed date by the filing of a performance guarantee in accordance with § 28-902D.

No construction permit shall be issued for any building within the subdivision until the developer has completed the following public improvements in accordance with the approved subdivision plans and construction plans:

All required utility installations and their appurtenances, including water mains, drainage and detention facilities, culverts, storm sewers, sanitary sewers or dry sewers and public improvements of open space;

All required grading and the bituminous base course surfacing of all streets;

Construction of all required curbs; and/or

Filed with the Borough a performance guarantee in accordance with § 28-902D, sufficient in amount to cover the cost of all remaining required improvements, as estimated by the Borough Engineer, and assuring the installation of said improvements on or before an agreed date and as hereinafter provided.

No certificate of occupancy shall be issued for any new construction within the subdivision except in compliance with the provisions for a certificate of occupancy as specified in Chapter 28.

Unless provided otherwise elsewhere in this chapter, the remaining required improvements shall be at least fifty percent (50%) completed as to each category set forth in the performance guarantee within one (1) year from the date of final approval or by such time as fifty percent (50%) of the lots in the section in question have been conveyed in any manner by the developer, whichever shall first occur. At least seventy-five percent (75%) of the improvements shall be completed as to each category as set forth in the performance guarantee within eighteen (18) months from the date of final approval, or at such time as seventy-five percent (75%) of the lots in the section in question have been conveyed in any manner by the developer; whichever shall first occur. Such improvements shall be one hundred percent (100%) completed and accepted by the Borough within two (2) years from the date of final approval or at such time as all of the lots in the section in question have been conveyed in any manner by the developer, whichever shall first occur.

It is the intention of the Borough Council that the foregoing requirements accomplish the following:

Provide to those living in each new section of a subdivision a lot that is as complete as possible with respect to tract and individual lot improvements; and

Protect the interests of the general public and residents of the development in the total completion of the development.

In the case of subdivision having final approval by stages or sections, the requirements of this section shall be applied by stage or phase.

Requirements Specific to Major Site Plans. No final major site plan application (whether for an entire tract or a phase thereof) shall be approved by the Planning Board or Zoning Board of Adjustments, as the case may be, unless:

The Borough Engineer has certified to the Board that all public improvements required by the resolution of preliminary site plan approval have been satisfactorily completed or,

The developer, with the approval of the Planning Board or the Zoning Board of Adjustment, as the case may be, has entered into a developer's agreement with the Borough in a form satisfactory to the Borough Attorney and authorized by the Governing Body:

Requiring the installation and maintenance by the developer (and the developer's successors in interest) of the public improvements; and

Imposing such limitations upon, and/or staging of, the development of the site as are necessary to ensure orderly construction of the public improvements on or before an agreed upon date by the filing of a performance guarantee in accordance with § 28-902D.

Requirements Specific to Minor Subdivisions and Minor Site Plans. In the case of a minor site plan and/or minor subdivision, in the event that the developer elects to complete all improvements without posting the performance guarantee specified in § 28-902D, no construction shall be commenced until a finalized plan is submitted and signed, incorporating all conditions of approval.

The developer shall still post the inspection escrow and notify the Borough Engineer prior to commencement of work.

All site improvements must be completed prior to the issuance of a certificate of occupancy, or within one hundred twenty (120) days of a temporary certificate of occupancy in the instance where a performance guarantee covering the balance of the uncompleted improvements has been posted.

Performance Guarantees.

In accordance with the provisions of N.J.S.A. 40:55D-53, the Borough of Watchung, before the 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 permit, may require the developer to post guarantees for the installation and maintenance of certain on-tract improvements. The proposed performance and maintenance guarantee shall be submitted to the Borough Engineer and the Borough Attorney for review as to accuracy and form. The Borough Clerk shall immediately notify the applicable land use board and the Borough Engineer when the performance guarantee has been approved by the Borough Attorney.

The developer shall furnish a performance guarantee in favor of the Borough of Watchung in an amount not to exceed one hundred twenty (120%) percent of the cost of installation of only those improvements required to be dedicated to a public entity, and that have not yet been installed, which cost shall be determined by the Borough Engineer according to the method of calculation set forth in 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," N.J.S.A. 46:23-9.9 et seq., water mains, sanitary sewers community septic systems, drainage structures, public improvements of open space, and any grading necessitated by the preceding improvements. The performance guarantee may also be required to include, at the discretion of the Borough, Planning Board or Zoning Board of Adjustment, a guarantee for the installation of privately-owned perimeter buffer landscaping. 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.

Safety and Stabilization Guarantee.

In addition to a performance guarantee required pursuant to § 28-902D, a developer may be required to 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:

Site disturbance has commenced and, thereafter, all work on the development has ceased for a period of at least sixty (60) consecutive days following such commencement for reasons other than force majeure, and

Work has not recommenced within thirty (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. The amount of the safety and stabilization guarantee shall be calculated as set forth in N.J.S.A. 40:55D-53. At the developer's option, the safety and stabilization guarantee may be included as a line item for safety and stabilization in the performance guarantee rather than in the form of a separate guarantee.

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 two and a half percent of bonded improvement costs in excess of $100,000 up to $1,000,000, plus one percent of bonded improvement costs in excess of $1,000,000.

The Borough Council 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 section.

The Borough Council shall release a "safety and stabilization guarantee" upon the Borough 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.

Posting of Performance Guarantee.

The total performance guarantee shall equal one hundred twenty (120%) percent of the performance guarantee cost estimate prepared by the Borough Engineer and shall include a time limit for the proper and complete installation of the improvements for which the guarantee is given. Ten (10%) percent of the performance guarantee shall be in cash. The remainder may be by certified check, surety bond or letter of credit. The surety bond or letter of credit must be issued by a company or bank having an office within the State of New Jersey and must be in a form acceptable to the Borough Attorney and must include a copy of the Borough Engineer's performance guarantee cost estimate. The portion of the performance guarantee consisting of cash or certified check shall be deposited with the Borough by payment to the Borough Clerk who shall issue a receipt therefor.

The deposit shall be retained as security for the completion of all required work or in the event of default on the part of the developer, to be used by the Borough to pay the costs of completing the improvements. If the required improvements are not completed or corrected in accordance with the performance guarantee and the standards of the Borough within the stipulated time, the obligor and surety for any bond shall be liable thereon to the Borough for the reasonable cost of the improvements not completed or corrected, and upon authorization by the Borough Council, the Borough Attorney shall take the necessary steps to obtain such cost from the obligor and surety. The Borough may, without prejudice to its rights against the obligor and surety, complete such improvements either prior to or after receipt of the proceeds of the performance guarantee. Such completion or correction of improvements shall be subject to the public bidding requirements of the "Local Public Contracts Law," P.L. 1971, c. 198 (C. 40A:11-1 et seq.)

Form of Guarantee. The Borough shall accept a performance guarantee or maintenance guarantee which is an irrevocable letter of credit if it:

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 N.J.S.A. 40:55D-53;

Is issued by a banking or savings institution authorized and doing business in this State;

Is for a period of time at least one year; and

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 § 28-902, 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.

Time for Installation. The time allowed for installation of the bonded improvements for which the performance guarantee has been provided may be extended by the Borough Council by resolution. As a condition or 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 (120%) percent of the cost of the installation, which cost shall be determined by the Borough Engineer according to the method of calculation set forth in N.J.S.A. 40:55D-53.4 as of the time of the passage of the resolution.

Temporary Certificate of Occupancy. 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 Borough in an amount equal to one hundred twenty (120%) percent 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 this § 28-902I, 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 Borough Engineer. The temporary certificate of occupancy guarantee shall be released by the Borough 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.

Construction Phases. In the event that final approval is by stages or sections, the provisions of this § 28-902 shall be applied by stage or section.

Start of Construction. Construction pursuant to a site plan or subdivision approval shall not commence until:

The developer has paid all fees and posted all escrows required by Chapter 28.

The developer has received all other governmental approvals required by the resolution of memorialization granting subdivision and/or site plan approval.

The developer has satisfied all conditions of approval required by the resolution of memorialization granting subdivision and/or site plan approval and all revisions to the submitted plat or plan required by the resolution at the time of subdivision or site plan approval have been filed with and approved by the Borough Engineer and any other individual or group as may have been specified in the applicable resolution of memorialization granting subdivision and/or site plan approval.

The developer's construction plans have been filed with and approved by the Borough Engineer.

The developer has had a preconstruction meeting with the Borough Engineer for the purpose of forecasting and resolving problems that may arise during the time of construction.

Regarding major subdivisions only, the developer has posted the "Sales Map" as required by this chapter in a prominent location in all offices from which sales of property in the subdivision development will be conducted.

Inspections and Tests.

All site improvements and utility installations for site plans, subdivisions, plot plans and other realty improvements shall be inspected during the time of their installation under the supervision of the Borough Engineer to ensure satisfactory completion. The cost of said inspection shall be the responsibility of the developer who shall deposit with the Chief Financial Officer of the Borough inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of five hundred ($500.00) dollars or five percent (5%) of the cost of the improvements as determined by the Borough Engineer in accordance with § 28-902D3, provided that:

For those developments for which the reasonably anticipated inspection fees are less than ten thousand ($10,000.00) dollars, the fees may, at the option of the developer, be paid in two (2) installments. The initial amount deposited by the developer shall be fifty percent (50%) of the reasonably anticipated fees. When the balance of deposit falls below 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 for the inspection(s), the developer shall deposit the remaining fifty percent (50%) of the anticipated inspection fees.

For those developments for which the reasonably anticipated inspection fees are ten thousand ($10,000.00) dollars or greater, the fees may, at the option of the developer, be paid in four (4) installments. The initial amount deposited by the developer shall be twenty-five percent (25%) of the reasonably anticipated fees. When the balance of 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 the inspection(s), the developer shall make additional deposits of twenty-five percent (25%) of the anticipated inspection fees.

The inspection escrow shall be deposited by the Chief Financial Officer of the Borough, or his/her designee, in an account for such purposes under the sole control of the Borough. Said inspection escrows may be commingled with similar escrows from other developers, but accurate accounts and records shall be kept so as to identify the particular escrows and charges made against the same. The inspection escrow funds shall be used solely for payment of related inspection fees, expenses and costs incurred on behalf of the Borough during the course of construction.

The Borough Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit. Failure of the developer to deposit the required inspection fees in accordance with this chapter will subject the developer to a "stop-work" order and/or suspension of construction permits.

In no case shall any paving work be done without permission from the Borough Engineer. At least two (2) working days notice shall be given to the Borough Engineer prior to any construction so that the Borough Engineer or a qualified representative may be present at the time the work is to be done.

Streets shall not be paved with a top course until all heavy construction is completed and, if determined by the Borough Engineer to be necessary, the bituminous base course has first been restored. Shade trees shall not be planted until all grading and earth moving is completed.

The Borough Engineer's office shall be notified at least three (3) working days prior to the commencement of the following phases of work so that he or a qualified representative may inspect the work; the Borough Engineer shall, in turn, notify the landscape architect designated by the Board, if applicable, regarding any seeding and planting:

Road subgrade.

Curb and gutter forms.

Curbs and gutters.

Road paving.

Sidewalk forms.

Sidewalks.

Drainage pipes and other drainage construction.

Street name signs.

Monuments.

Sanitary sewers and pump stations.

Topsoil, seeding and planting.

Underground utilities.

Potable water facilities.

Detention and/or retention basins.

When designated by the Planning Board or Zoning Board of Adjustment, as the case may be, the landscape architect shall witness and approve landscaping in a designated area or on a typical lot within a development as deemed appropriate and necessary and/or as directed by the Borough Engineer. A follow-up inspection when the entire site or phase of development is completed shall be conducted in order to confirm compliance for either a phase of development or the entire project:

Plantings shall be checked for compliance with approved plans; i.e., satisfactory condition, correct quantity, size, species and location. Any change or modifications to the approved plans must be reviewed and approved by the landscape architect designated by the Planning Board or Zoning Board of Adjustment, as the case may be.

Lawns shall be inspected for adequate coverage of healthy, vigorously growing grass which is relatively free of weeds and void of bare spots larger than one (1) square foot in area. Bare spots greater than one (1) square foot in area shall be reseeded or resodded and reinspected until acceptable coverage is achieved.

Upon completion of the landscaping, the landscape architect shall check for compliance with the landscape plans approved by the Planning Board or Zoning Board of Adjustment, as the case may be. A punch list of outstanding or unsatisfactory items shall be compiled with copies given to the developer and the Borough Engineer, and a final sign-off shall be given after necessary remedial work.

Upon successful completion of all landscape work, a written recommendation shall be forwarded by the landscape architect to the Borough Engineer to be included in the inspection report to the Borough Council before the release of performance guarantees.

Any improvement installed contrary to the plan or plat approved by the Borough shall constitute just cause by the applicable land use board or designated official to void or deem voidable the municipal approval. Moreover, if a certificate of occupancy or construction permit is issued by a Borough official pursuant to this chapter, such certificate or permit does not indicate acceptance by the Borough of any deviation(s) from the plan or plat as approved by the Planning Board or Zoning Board of Adjustment, as the case may be.

Any improvement installed without notice for inspection pursuant to § 28-902L shall constitute just cause for:

Removal of the uninspected improvement;

The payment by the developer of any costs for material testing;

The restoration by the developer of any improvements disturbed during any material testing; and/or

The issuance of a "stop-work" order by the Borough Engineer pending the resolution of any dispute.

10.

Inspection by the Borough of the installation of improvements and utilities shall not operate to subject the Borough to liability for claims, suits or liability of any kind that may at any time arise because of defects or negligence during construction or at any time thereafter; it being recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the developer, owner and contractor, if any.

11.

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 in writing, by certified mail 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, 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 improvements have been completed and which improvements remain uncompleted in the judgment of the obligor.

The Borough Engineer shall inspect all the 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.

If the Borough Engineer fails to send or provide the list and report, as requested by the obligor, within forty-five (45) days from the receipt of the request, the obligor may apply to a court of competent jurisdiction 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.

12.

The list prepared by the Borough Engineer pursuant to § 28-902D3 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 this chapter.

Release. 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 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 Borough Engineer and appended to the performance guarantee pursuant to this chapter. This resolution shall be adopted not later than forty-five (45) days after receipt of the list and report prepared by the Borough Engineer.

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.

In the event that the obligor has made a cash deposit with the Borough or applicable land use board as part of the performance guarantee, then any partial reduction granted in the performance guarantee 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.

If any portion of the required improvements is rejected, the obligor shall complete or correct such improvements and, upon completion or correction, shall notify the Borough Council pursuant to § 28-902L11 and the same procedures shall be followed as in the first instance.

Prior to the approval by the Borough Council of the final reduction and release of the performance guarantee, all easements and open space shall be conveyed to the Borough or such other guarantee as specified on the final plat by deed containing a metes-and-bounds legal description.

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 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 Borough Engineer and appended to the performance guarantee pursuant to this chapter, and the cost of applying to a court of competent jurisdiction, including reasonable attorney's fees, may be awarded to the prevailing party.

Conditions, Acceptance of Improvements, and Maintenance Guarantees. The approval of any application for development by the Borough shall in no way be construed as acceptance of any street or drainage system or other improvement. No improvements shall be accepted by the Borough Council unless and until all of the following conditions have been met:

The final application for development shall have been approved by the Planning Board or Zoning Board of Adjustment, as the case may be, and the developer shall have submitted an affidavit, signed by a licensed New Jersey professional land surveyor, certifying that all required monuments have been set in accordance with the Map Filing Law and any approved subdivision plat.

The Borough Engineer shall have certified in writing that the improvements are completed and that they comply with the requirements of this chapter and the terms of the final application for development approved by the Planning Board or Zoning Board of Adjustment, as the case may be.

The owner shall have filed with the Borough Council a maintenance guarantee in an amount equal to and not more than fifteen percent (15%) of the cost of installing the improvements, the cost to be determined by the Borough Engineer in accordance with § 28-902D3.

The maintenance guarantee shall run for a period of two (2) years, provided that the maintenance guarantee shall not terminate until the Borough Council has authorized its release pursuant to a recommendation by the Borough Engineer.

The procedures and requirements governing such maintenance guarantee shall be identical with the procedures and requirements for a performance guarantee set forth in this chapter.

The requirements for a maintenance guarantee may be waived by the Borough Council only if the Borough Engineer has certified that the improvements have been in continuous use for not less than two (2) years from the date the Borough Engineer certified completion of such improvements and that during this period the owner has maintained the improvements in a satisfactory manner.

An "as built" plan and profiles of all utilities and roads shall be provided with certification signed and sealed by a New Jersey licensed professional engineer as to the actual construction as approved by the Borough Engineer. The "as built" information shall be submitted in the form of: two (2) black and white prints to be sent to the Borough Engineer plus a mylar copy and two (2) black and white prints to be sent to the Administrative Officer; and in electronic format sent to the Borough Engineer in format as required by the Borough Engineer.

Extension of Time. The time allowed for the installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council by resolution, provided that the current cost of installation of such improvements shall first be redetermined by the Borough Engineer, and if such current cost is found to be greater than the cost as originally determined, the developer shall be required to increase the amount of the performance guarantee to an amount equal to one hundred twenty percent (120%) of the installation cost as redetermined. In the event that the redetermined cost shall be less than the cost as originally determined, and in the further event that the developer's performance guarantee exceeds one hundred twenty percent (120%) of such redetermined costs, the developer shall be entitled to a reduction of the performance guarantee to an amount equal to one hundred twenty percent (120%) of such redetermined costs.

Default by Developer. If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, under the performance guarantee shall be liable thereon to the Borough for the cost of the improvements not completed or constructed, and the Borough, either prior to or after receipt of the proceeds thereof, may complete the 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.

For purposes of this section, "default" shall mean failure to install the improvements in accordance with Borough standards of construction, including but not limited to failure to install the improvements prior to the expiration of the performance guarantee.

The Borough Engineer's certification that the developer has failed to comply with the required standards of construction and installation of improvements shall be the basis for Borough Council action which rejects the improvements, withholds approval, withholds construction permits or formally declares default and authorizes collection on the performance guarantee.

Penalties. In addition to the penalties specified for violation of this chapter, the Borough Engineer, or another Borough official designated by the Borough Council, is specifically authorized to require the replacement or restoration of any lands, buildings, structures and site improvements (including clearing, whether on site or off site) or of any other work commenced or continued on any site for which an approval is required pursuant to this chapter in violation of any stop-work order or the standards for construction as established by the Borough.

28-903 ADDITIONAL PROVISIONS FOR ESCROW DEPOSITS.

[Ord. No. OR:09/01 § 28-903]

The Borough, or the Planning Board or the Zoning Board of Adjustment, as the case may be, shall not bill the applicant or charge any established escrow account for any municipal clerical or administrative functions, overhead expenses, meeting room charges, or for any other municipal costs and expenses except, and subject to, the following:

If the salary, staff support and overhead for a municipal professional are provided by the Borough, the charge shall not exceed two hundred percent (200%) of the sum of the product resulting from multiplying the hourly base salary of each of the professionals by the number of hours spent by the respective professional upon review of the application for development or for the inspection of the developer's improvements, as the case may be.

If the salary, staff support and overhead for a municipal professional are not provided by the Borough, the fees or charges shall be based upon a schedule established by resolution and shall be at the same rate as all other work of the same nature by the professional for the municipality when fees are not reimbursed or otherwise imposed on applicants or developers.

If the Borough retains a different professional or consultant in the place of the professional originally responsible for development within the municipality, for the review of an application for development or for the inspection of improvements, the Borough, or the Planning Board or the Zoning Board of Adjustment, as the case may be, shall be responsible for all time and expenses of the new professional to become familiar with the application or the project, and the municipality or municipal agency shall not bill the applicant or charge any established escrow account for any such service.

The Chief Financial Officer of the Borough, or his/her designee, shall make all of the payments to professionals for services rendered to the Borough, to the Planning Board or to the Zoning Board of Adjustment, as the case may be, for the review of applications for development and the inspection of improvements and shall administer the review and escrow deposits as follows:

Each payment charged to a deposit for the review of applications for development and for the inspection of improvements shall be pursuant to a voucher from the professional in accordance with the following:

Each voucher shall identify the personnel performing the service, the date each service is performed, the hours spent to one-quarter (1/4) hour increments, the hourly rate of the professional, and the expenses incurred.

Each voucher shall be submitted 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.

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.

The Chief Financial Officer of the Borough shall prepare and send to the applicant a statement which shall include an accounting of the 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 the monthly charges are one thousand ($1,000.00) dollars or less, or on a monthly basis if the monthly charges exceed one thousand ($1,000.00) dollars.

If an escrow account or deposit contains insufficient funds to enable the Borough, the Planning Board or the Zoning Board of Adjustment, as the case may be, to perform the required application reviews or improvement inspections, the Chief Financial Officer of the Borough shall provide the applicant with a written notice of the insufficient escrow or deposit balance.

In order for work to continue on the development or the application, the applicant, within ten (10) days of the written notice, shall post a deposit to the account in an amount to be agreed upon between the Borough, the Planning Board or the Zoning Board of Adjustment, as the case may be, and the applicant.

With regard to review fees, if the applicant fails to make said deposit within the time prescribed herein, the Planning Board or Zoning Board of Adjustment, as the case may be, shall be authorized to dismiss the application without prejudice subject to the right of the applicant to seek reinstatement by notice to the Board that said deposits have been posted.

With regard to inspection fees, the Borough Engineer shall not perform any inspection if sufficient funds to pay for the inspections are not on deposit, provided that any required health and safety inspections shall be made and charged back against the replenishment of funds. Failure to post and maintain inspection fee deposits in accordance with these requirements will subject the developer to a "stop-work" order and/or suspension of construction permits.

The following close-out procedure shall apply to all deposits and escrow accounts and shall commence after the approving authority 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 and the approving authority, 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 professional shall render a final bill to the Chief Financial Officer of the municipality within thirty (30) days, and shall send a copy simultaneously to the applicant. The Chief Financial Officer of the municipality 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 § 28-903D shall be refunded to the developer along with the final accounting.

Whenever an amount of money in excess of five thousand ($5,000.00) dollars is deposited by an applicant or developer with the Borough for professional services employed by the Borough for the review of submitted applications for development pursuant to Article 28-900, or for inspections pursuant to § 28-902F, or to satisfy the guarantee requirements pursuant to § 28-902D, the money, until repaid or applied to the purposes for which it is deposited, including the applicant's or developer's portion of the interest earned thereon, except as otherwise provided in this section, shall continue to be the property of the applicant or developer and shall be held in trust by the municipality in accordance with the following:

The money deposited shall be held in escrow.

The money shall be deposited by the Borough 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 approved for such deposits by the State.

The money shall be deposited 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.

The Borough shall not be required to refund an amount of interest paid on a deposit which does not exceed one hundred ($100.00) dollars. However, if the amount exceeds one hundred ($100.00) dollars, that entire amount shall belong to the applicant or developer and shall be refunded to him/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 not more than thirty-three and one-third percent (33 1/3%) of that entire amount which shall be in lieu of all other administrative and custodial expenses.

28-904 OFF-TRACT IMPROVEMENTS.

[Ord. No. OR:09/01 § 28-904; Ord. No. OR:07/23 § 3]

Required Improvements. Applicants shall be required, as a condition for approval of a subdivision, site plan or conditional use, to pay their pro rata share of the cost providing reasonable and necessary street improvements and/or water, sewerage and drainage facility improvements, and any necessary easements therefor located outside the property limits of the subject premises, but indicated in the Borough Master Plan and necessitated or required by construction or improvements within such subdivision or development. The following criteria shall be utilized in determining the developer's proportionate pro rata monetary share for the necessary off-tract improvements.

Improvements to be Constructed at the Expense of the Developer. In cases where the need for an off-tract improvement is reasonably created by the proposed subdivision or development and where no other property owners receive a special benefit thereby (as opposed to a mere incidental benefit), the applicant may be required, as a condition of approval and at the applicant's sole expense, to acquire and/or improve lands outside the tract and dedicate such lands to the Borough or Somerset County or, in lieu thereof, require the subdivider or developer to deposit with the Borough a sum of money sufficient to allow the Borough to acquire and/or improve such lands on conditions it may deem appropriate under the circumstances.

General Standards for Other Improvements. In cases where the need for any off-tract improvement to be implemented now or in the future is reasonably necessitated by the proposed development application, and where it is determined that properties outside the development also will be benefited by the improvement, the following criteria, together with the provisions or rules and regulations of the Borough or any department thereof, may be utilized in determining the developer's proportionate share of such improvements:

Sanitary Sewers. For distribution facilities, including the installation, relocation or replacement of collector, trunk and interceptor sewers and the installation, relocation or replacement of other appurtenances associated therewith, the applicant's proportionate share shall be computed as follows:

The capacity and the design of the sanitary sewer system shall be based on the Rules and Regulations for the Preparation and Submission of Plans for Sewerage Systems, New Jersey State Department Of Environmental Protection, and all Borough sewer design standards, including infiltration standards.

Developer's pro rata share:

(1)

The capacity of the existing system to serve the entire improved drainage area shall be computed. If the system is able to carry the total development drainage basin, no improvement or enlargement cost will be assigned to the developer although some charges including, but not limited to, capacity charges may be imposed. If the existing system does not have adequate capacity for the total development drainage basin, the pro-rated enlargement or improvement share shall be computed as follows:

Developer's Cost		Development gpd
______________	=	______________
Total Enlargement or Improvement Cost		Total Tributary gpd

(2)

If it is necessary to construct a new system in order to develop the subdivision or development, the pro-rated enlargement share to the developer shall be computed as follows:

Developer's Cost		Development Tributary gpd
________________	=	__________________
Total Project Cost		Total Tributary gpd to New System

(3)

The plans for the improved system or the extended system shall be prepared by the developer's engineer. All work shall be calculated by the developer and approved by the Borough Engineer.

Roadways. For street widening, alignment, channelization of intersections, construction of barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvement uncovered elsewhere, the construction or reconstruction of new or existing streets and other associated streets or traffic improvements, the applicant's proportionate cost shall be determined as follows:

The applicant's engineer shall provide the Borough Engineer with the existing and anticipated peak-hour volumes which impact the off-tract areas in question, which volumes shall analyze pedestrian, bicycle and motor vehicle traffic.

The applicant shall furnish a plan for the proposed off-tract improvements, which shall include the estimated peak-hour traffic generated by the proposed development. The ratio of the peak-hour traffic generated by the proposed development to the future peak-hour traffic shall form the basis of the proportionate share. The pro-rated share shall be computed as follows:

Developer's Cost		Additional Peak-Hour Traffic Generated by the Development
_________________________	=	__________________________
Total Cost of Road- way Improvement and/or Extension		Total Future Peak-Hour Traffic

Drainage Improvements. For the stormwater and drainage improvements, including the installation, relocation or replacement of storm drains, culverts, catch basins, manholes, riprap or improved drainage ditches and appurtenances thereto and the relocation or replacement of other storm drainage facilities or appurtenances associated therewith, the applicant's proportionate share shall be determined as follows:

The capacity and design of the drainage system to accommodate stormwater run off shall be based on a method described in Urban Hydrology for Small Watersheds, Technical Release 55, Soil Conservation Service USDA, January 1975, as amended, and shall be computed by the developer's engineer and approved by the Borough Engineer.

The capacity of the enlarged, extended or improved system required for the subdivision or development and areas outside of the subdivision or development shall be computed by the developer's engineer and be subject to the approval of the Borough Engineer. The plans for the improved system shall be prepared by the developer's engineer and the estimated cost of the enlarged system shall be calculated by the Borough Engineer.

The pro-rated share for the proposed improvement shall be computed as follows:

Developer's Cost		Development cfs
____________________	=	________________
Total Enlargement or Improvement Cost of Drainage Facilities		Total Tributary cfs

Water.

Where no public water is accessible, the applicant shall deposit funds in escrow with the Borough in an amount equal to the cost of connecting the subdivision to an existing public water supply system calculated on the basis of two hundred (200) feet per unit.

The escrow amount shall be calculated by determining the costs of providing such water main extension as charged by the public water utility for such service, including, but not limited to, materials, installation, taxes, appurtenances, surcharges, if any, etc.

A recycling plan, if required pursuant to § 28-610 hereinbelow.

Escrow Accounts. Where the proposed off-tract improvement is to be undertaken at a future date, funds required for the improvement shall be deposited to the credit of the Borough of Watchung in a separate account until such time as the improvement is constructed. In lieu of a cash escrow account, developers may present irrevocable letters of credit for the term required in a form acceptable to the Borough Attorney.

If the off-tract improvement is not begun within ten (10) years of the deposit, all monies and interest shall be returned to the applicant or the letter of credit, as the case may be, surrendered.

An off-tract improvement shall be considered "begun" if the Borough has taken legal steps to provide for the design and financing of such improvements.

Referral to Borough Council.

Where applications for development suggest the need for off-tract improvements, whether to be installed in conjunction with the development in question or otherwise, the Planning Board or the Zoning Board of Adjustment, as the case may be, shall forthwith forward to the Borough Council a list and description of all such improvements together with a request that the Borough Council determine and advise the Board of the procedure to be followed in construction or installation thereof, including timing. The Board shall defer final action upon the subdivision or site plan until receipt of the Borough Council determination or the expiration of ninety (90) days after the forwarding of such list and description to the Borough Council without determination having been made, whichever comes sooner.

The Borough Council, within ninety (90) days after receipt of said list and description, shall determine and advise the Planning Board or Zoning Board of Adjustment, as the case may be, concerning the procedure to be followed and advise the Board with regard to suggested conditions of approval, if any, to adequately protect the municipality.

In the event that the Planning Board or Zoning Board of Adjustment, as the case may be, is required by statute to act upon the application prior to receipt of the Borough Council's determination as to construction of off-tract improvements, it shall request the applicant to consent to an extension of time within which to act, of sufficient duration to enable the Borough Council to make the aforesaid determination. In the event that the applicant is unwilling to consent to the requested extension of time, the Planning Board or Zoning Board of Adjustment, as the case may be, shall, in its discretion, either itself determine the procedure to be followed in constructing the aforesaid improvements, or shall condition its approval upon the subsequent determination of the Borough Council.

Implementation of Off-Tract Improvements.

In all cases, developers shall be required to enter into an agreement or agreements with the Borough in regard to off-tract improvements, in accordance with this chapter and any other ordinances, policies, rules and regulations of the Borough, Somerset County and the State of New Jersey and any departments, authorities or agencies thereof.

Where properties outside the subject tract will be benefited by the improvements, the Borough Council may require the applicant to escrow sufficient funds, in accordance with § 28-904D (Escrow Accounts), to secure the developer's pro rata share of the eventual cost of providing future structural improvements based upon the standards expressed herein.

Where properties outside the subject tract will benefit by the improvements, the Borough Council may determine that the improvement or improvements are to be installed by the municipality as a general improvement, the cost of which is to be borne as a general expense. If the Borough Council shall determine that the improvement or improvements shall be constructed or installed as a general improvement, the Borough Council may direct the Planning Board to estimate, with the aid of the Borough Engineer or such other persons who have pertinent information or expertise, the amount, if any, by which the total cost thereof will exceed the total amount by which all properties, including the subject tract, will be specifically benefited thereby, and the subdivider or developer shall be liable to the municipality for such expense.

If the Borough Council shall determine that the improvement or improvements shall be constructed or installed as a local improvement, all or a part of the cost of which is to be assessed against properties benefited thereby in proportion to the benefits conferred by the improvements in accordance with Chapter 56 of Title 40 of the Statutes of the State of New Jersey, the developer may be required to sign an agreement acknowledging and agreeing to this procedure and, in addition, the Borough Council may require that the developer shall be liable to the municipality, in addition to the amount of any special assessments against the subject property for benefits conferred by the improvement or improvements, the difference between the total cost actually incurred and the total amount by which all properties, including the subject tract, are specially benefited by the improvement as the same may be determined by the Board of Improvement Assessors.

If the Borough Council shall determine that the improvements are to be constructed or installed by the applicant, such agreement may contain provisions, consistent with the standards in this chapter and any other rules, regulations or policies of the Borough, County of Somerset and the State of New Jersey and any departments, authorities or agencies thereof with jurisdiction therein, whereby the applicant shall be reimbursed by the municipality or otherwise, as a result of any participation fees, connection charges, charges paid in regard to developer's agreements with other applicants and the like, all in accordance with an agreement between the Borough Council and the applicant.

In determining the procedures to be followed in the event of the submission of a list and request from the Planning Board, the Borough Council shall be guided by the following standards and considerations:

The local trends in regard to the probability of development within the drainage or circulation area in question and the intensity of such development;

The risk and exposure that neighboring areas are subject to in the event that the required improvements are delayed;

The extent to which temporary measures may sufficiently alleviate the condition or conditions requiring the off-tract improvement and the likelihood that larger, regional or subregional facilities will be required in the future to serve the tract and the general area of the municipality in which the same is located; and

The extent to which the health, safety and welfare of the residents, both current and future, depend upon the immediate implementation of the off-tract improvement.