Borough of Frenchtown, NJ Article VI Fees, Guarantees, Inspections and Off-Tract Improvements

§ 50-601 Development application fees.

[Ord. No. 564, 9-6-2000; amended 9-1-2022 by Ord. No. 892; 12-30-2025 by Ord. No. 948]

A. General conditions.

(1) The applicant shall, at the time of filing an application for development, pay the following fees to the Borough by cash, check or money order. The nonrefundable application fees set forth below are to cover the administrative costs incurred by the Borough in processing applications. The escrow accounts are to pay the cost of professional reviews by the Borough Engineer, Planning/Zoning Board Attorney, Planning Consultant, Borough Attorney and other professionals employed by the Planning/Zoning Board to review and make recommendations on the application for development.

(2) At the time of submitting an application for approval of any application requiring an escrow deposit to the Chief Financial Officer of the Borough, the applicant shall be required to execute an escrow agreement in a form approved by the Borough Council to cover all necessary and reasonable costs incurred by the Planning/Zoning Board for technical and professional reviews of the application and for the inspection of improvements thereafter. The escrow agreement shall conform to the requirements of this section and N.J.S.A. 40:55D-53 et seq. but may include any additional terms which are agreed to by the applicant and the Borough or Board.

(3) When an applicant submits a site plan or subdivision application for informal (conceptual) review, it shall be the applicant's option to request professional reviews of the application by executing an escrow agreement to cover the necessary and reasonable costs incurred by the Planning/Zoning Board for such reviews.

(4) The amounts specified for the escrow deposits are estimates, which shall be paid prior to the certification of completeness on an application. The reasonable costs incurred for professional reviews may exceed the amount specified for the escrow deposit. When this occurs, the procedures set forth in Subsection B(3)(c) hereinbelow shall apply.

(5) In the event that the amounts posted are more than those required, the applicant shall be eligible to request that any excess funds be returned after the filing of the deed in the case of a minor subdivision or the completion and acceptance of any required improvements in the case of a major subdivision, the issuance of a certificate of occupancy in the case of a site plan or, where an application for variance or other relief does not involve a subdivision or site plan, after the adoption of the resolution memorializing the action taken. The procedures for closeout of escrow accounts set forth in Subsection B(3)(d) hereinbelow shall be followed.

(6) Whenever an amount of money in excess of $5,000 shall be deposited by an applicant for the services of professionals employed by the Borough to review applications for development or for inspection fees or for off-tract improvements or to satisfy performance or maintenance guarantee requirements, that 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 herein, shall continue to be the property of the applicant and shall be held in trust by the Borough. Money deposited shall be held in escrow. The Borough shall deposit it in a banking institution or savings and loan association in this state insured by an agency of the federal government, or in any other fund or depository approved for such deposits by the state, in an account bearing interest at the minimum rate currently paid by the institution or depository on time or savings deposits. The municipality 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 municipality shall not be required to refund an amount of interest paid on a deposit which does not exceed $100 for the year. If the amount of interest exceeds $100, that entire amount shall belong to the applicant and shall be refunded to him by the municipality 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 municipality may retain for administrative expenses a sum equivalent to no more than 33 1/3% of that entire amount, which shall be in lieu of all other administrative and custodial expenses.

B. Use and accounting of escrow fees.

(1) The Chief Financial Officer of the Borough shall make all of the payments to professionals for services rendered to the Borough or any of its boards or commissions for review of applications for development, review and preparation of documents, inspection of improvements or other purposes pursuant to the Municipal Land Use Law and in accordance with fee schedules preestablished by resolution of the Borough Council or Board. Such payments shall be made from the applicant's deposit in the escrow account.

(2) The payments charged to the escrow account shall comply with the following:

(a) Each payment charged to the escrow account for review of applications, review and preparation of documents and inspection of improvements shall be pursuant to vouchers from the professionals, which vouchers shall identify the personnel performing the service, and, for each date, the services performed, the hours spent to one-quarter-hour increments, the hourly rate and the expenses incurred.

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

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

(d) The professionals shall send informational copies of all vouchers or statements submitted to the Chief Financial Officer simultaneously to the applicant. The only costs to be added to such charges shall be the actual out-of-pocket expenses of any such professionals or consultants, including normal and typical expenses incurred in processing applications and inspecting improvements. The Borough or Board shall not bill the applicant or charge the escrow account or deposit for any municipal clerical or administrative functions, overhead expenses, meeting room charges, or any other municipal costs and expenses except as otherwise provided herein, nor shall a Borough professional add any such charges to his bill.

(e) 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. Review fees shall be charged only in connection with an application for development presently pending before the Board or upon review of compliance with conditions of approval or review of requests for plan or plat modifications or amendments that are made by an applicant. A 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 a state agency is necessary due to the effect of state approvals on the subdivision or site plan.

(f) 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.

(g) If the municipality retains a different professional or consultant in the place of the professional originally responsible for application reviews or inspections of improvements, the Borough or Board shall be responsible for all time and expenses of the new professional to become familiar with the application or the project, and the Borough or Board shall not bill the applicant or charge the escrow account for any such services.

(h) If the salary, staff support and overhead for a professional are provided by the Borough, the charge to the escrow deposit shall not exceed 200% of the sum of the products resulting from multiplying the hourly base salary of each of the professionals by the number of hours spent by the respective professional in reviewing the application for development or the developer's improvements, as the case may be. For other professionals, the charge to the deposit shall be at the same rate as all other work of the same nature by the professional for the Borough.

(3) Escrow accounts shall be managed in accordance with the following procedures:

(a) 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.

(b) 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.

(c) If an escrow account or deposit contains insufficient funds to enable the Borough or Board to complete required application reviews or improvement inspections or has been depleted to 25% or less of the original amount required, the Chief Financial Officer shall provide the applicant with a notice of the insufficient escrow or deposit balance, and the applicant shall, within 15 days, post a deposit to the account in an amount to be agreed upon by the Borough or Board and the applicant or else work shall cease on the review of the application or on inspections, provided that, in the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

(d) To effect a closeout of the escrow account, the applicant shall send written notice by certified mail to the Chief Financial Officer of the municipality and the Board, and to the relevant municipal professional(s), that the application or the improvements, as the case may be, are completed. After receipt of such notice, the professional(s) shall render a (their) final bill(s) to the Chief Financial Officer of the municipality within 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 45 days of receipt of the final bill. Any balances remaining in the deposit or escrow account, including interest, as set forth in Subsection A(6) herein, shall be refunded to be developer along with the final accounting.

C. Appeals of charges.

(1) An applicant shall notify the Borough Council in writing with copies to the Chief Financial Officer, the Board and the professional whenever the applicant disputes the charges made by a professional for services rendered to the municipality in reviewing applications for development, review and preparation of documents, inspections of improvements or other charges.

(2) An applicant disputing the charges made by a professional for services rendered to the municipality in reviewing an application for development or for review and preparation of documents in connection with a development application may elect to initially present the request for reconsideration of such charges to the Board. The applicant's notification to the Borough Council shall include a statement as to whether or not the applicant elects to initially present the request to the Board.

(3) If the applicant elects to initially present the request for reconsideration to the Board, the matter shall be placed on the Board's agenda at the next regular meeting following receipt of notification. The Board shall, after hearing such request, either decline to reconsider the disputed charges or adopt a resolution recommending reconsideration of the disputed charges to the Borough Council, which resolution may or may not be specific as to the nature and extent of the charges recommended to be reconsidered.

(4) Thereafter (or upon notification, if the applicant elects not to present the request for reconsideration to the Board), the Council, or its designee, shall, within a reasonable time period, attempt to remediate any disputed charges.

(5) If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal the charges to the County Construction Board of Appeals as provided at N.J.S.A. 40:55D-53.2 within 45 days of receipt of the informational copy of the professional's voucher or, if the professional has not supplied the applicant with an informational copy of the voucher, then within 60 days of receipt of the statement of activity against the escrow account from the Chief Financial Officer.

(6) During the pendency of any appeal, the Borough or Board shall continue to process, hear and decide the application for development and/or 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 or 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. The Chief Financial Officer of the Borough may pay charges out of the escrow account or deposit for which an appeal has been filed. 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.

D. Multiple applications. Proposals requiring a combination of approvals, such as subdivision, site plan, conditional use and/or variance relief, shall pay a fee equaling the sum of the fees for each component element of the development application.

E. Schedule of fees and escrows.

	Application Fee	Escrow Fee
Subdivision:
Informal review
Informal review without professional review (one appearance only)	$0	None required
Informal review with professional review (major)	$250	$1,000
Informal review with professional review (minor)	$100	$1,000
Preliminary subdivision plat (major)	$700 + $200 for each lot	$3000 + $500 for each lot
Final subdivision plat (major)	$500 + $100 for each lot	$3,000 + $500 for each lot
Minor subdivision plat	$300 + $100 for each lot	$1,000 for each lot
Final plat for boundary line adjustment only (no new lots created)	$200	$500
Site Plan:
Informal review
Informal review without professional review (one appearance only)	$0	None required
Informal review with professional review (major)	$250	None required
Informal review with professional review (minor)	$100	None required
Preliminary site plan (major)	$500	$2,000 plus $50 per 1,000 square feet of lot area, plus $100 per 1,000 square feet of lot coverage by building(s), all paved surfaces and graveled parking and vehicular circulation areas
Final site plan (major)	$500	$1,000 plus $30 per 1,000 square feet of lot area, plus $60 per 1,000 square feet of lot coverage by building(s), all paved surfaces and graveled parking and vehicular circulation areas.
Minor site plan	$250	$2,000
Request for site plan waiver	$50.00 for each waiver	$750
Conditional Uses:
Outdoor displays and street furniture	$25	None required
Wireless telecommunication antenna(s) (with no new tower)	$500 plus $500	$2,000 plus $500 per 1,000 square feet of lot area, plus $100 per 1,000 square feet of lot coverage by building(s), all paved surfaces and graveled parking and vehicular circulation areas plus $3,500
Wireless telecommunication tower	$500 plus $1,500	$2,000 plus $50 per 1,000 square feet of lot area, plus $100 per 1,000 square feet of lot coverage by building(s), all paved surfaces and graveled parking and vehicular circulation areas plus $3,500
All other conditional uses	$500	$2,000 plus $50 per 1,000 square feet of lot area, plus $100 per 1,000 square feet of lot coverage by building(s), all paved surfaces and graveled parking and vehicular circulation areas.
Variance: for each request
Appeals (N.J.S.A. 40:55D-70a)	$300	$1,000
Intepretations (N.J.S.A. 40:55D-70b)	$300	$1,000
Bulk (N.J.S.A. 40:55D-70c)	$300	$1,000
Use (N.J.S.A. 40:55D-70d)	$300	$4,500
Permit (N.J.S.A. 40:55D-34 and 36)	$300	$1,000
Conditional use	$300	$3,000
Waiver of design standards	$0	$75 for each waiver requested
Subdivision approval certificate	$10 per certificate	None required
Certification of pre-existing nonconforming use	$300	$1,000
Zoning and Sign Permits:
Sign permit (if not part of site plan, with no professional review)	$50	None required
Sign permit (if not part of site plan, with professional review)	$50	$750
Zoning permit	$50	None required
Driveway permit (if not part of a site plan)
Modification to an existing driveway	$25
New driveway	$50	$200
Certification of existence of lawfully nonconforming use or structure	$500	None required
Floodplain development permit	$400	None required
Informal review of matters not involving a site plan or subdivision	—	None required
Informal review with professional review	$250 per request	$750
Special Meeting if scheduled by the Board at the request of an applicant	$1,000	None required
Soil erosion and sediment control plan certification and inspections	Per Hunterdon County Soil Conservation District fee schedule (payable to Hunterdon County Soil Conservation District)
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 shall arrange for the reporter's attendance.
The charge for a tape or transcription of a tape shall be the actual cost to the Borough of providing such tape or transcription.

F. The Borough Clerk is hereby directed to give notice at least 10 days prior to a hearing on the adoption of an ordinance to the Hunterdon County Planning Board and all other persons or entities entitled thereto pursuant to N.J.S.A. 40:55D-15, including to the Clerks of adjoining municipalities. The Borough Clerk shall execute Affidavits of Proof of Service of the notices required by the section, and shall keep the Affidavits on file along with the Proof of Publication of the notice of the required public hearing on the proposed change.

G. After introduction, the Borough Clerk is hereby directed to submit a copy of an ordinance to the Planning Board of the Borough of Frenchtown for its review in accordance with N.J.S.A. 40:55D-26 and N.J.S.A. 40:55D-64. The Planning Board is directed to make and transmit to the Borough Common Council, within 35 days after referral, a report including Borough's Master Plan and recommendations concerning any inconsistencies and any other matters as the Board may deem appropriate.

H. An ordinance shall take effect immediately upon: (i) adoption; (ii) publication in accordance with the laws of the State of New Jersey; and (iii) filing the final form of adopted ordinance by the Borough Clerk with the Hunterdon County Planning Board pursuant to N.J.S.A. 40:55D-16.

§ 50-602 Guarantees; start of construction pursuant to an approved plan and inspections.

[Ord. No. 564, 9-6-2000]

A. Public improvements. For the purposes of this section, the term "public improvements" shall include streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments, water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal (excluding individual subsurface sewage disposal systems intended to serve individual lots), drainage structures, erosion control features, and sedimentation control devices, open space land improvements and equipment, and, in the case of site plans only, other on-site improvements and landscaping.

B. Requirements specific to subdivisions.

(1) No final major subdivision plat shall be recorded unless either the Borough Engineer has certified to the Board that all public improvements required by the preliminary subdivision 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 Subsection D below.

(2) 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 required by Subsection E(4) below:

(a) 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.

(b) All required grading and the "macadam base course" surfacing of all streets.

(c) Construction of all required curbs.

(3) No certificate of occupancy shall be issued for any dwelling within the subdivision until the driveway apron, sidewalk, trees and grass for that particular dwelling have been installed and/or planted and approved by the Borough Engineer. Upon recommendation of the Borough Engineer to the Construction Official, a temporary certificate of occupancy not to exceed six months in duration may be issued if seasonal conditions would make planting unreasonable.

(4) Such public improvements shall be 100% completed and subject to acceptance by the Borough within two years from the date of final approval, or any extension thereof, or prior to the time a request is made for the last certificate of occupancy for a lot in the subdivision or stage or section thereof, whichever shall first occur.

(5) It is the intention of the Borough Council that the foregoing requirements provide to each owner in the 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 the residents of the development in the total completion of the development.

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

C. Requirements specific to site plans. No final major site plan application (whether for an entire tract or a section thereof) shall be unconditionally approved by the Board unless either the Borough Engineer has certified to the Board that all public improvements required by the preliminary site plan 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 installation and maintenance by the developer and its successors in interest, of the public improvements, imposing such limitations upon, and/or staging of, the development of the site 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 Subsection D below.

D. Performance guarantee.

(1) An itemized cost estimate of the improvements covered by the performance guarantee shall be prepared by the Borough Engineer. The itemized cost estimate shall set forth all required public improvements as determined by the Board together with the estimated costs to the Borough of completing the improvements and shall be appended to each performance guarantee posted by the obligor.

(a) 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, the cost of such improvements shall not be included in the calculation, and no performance or maintenance guarantee, as the case may be, shall be required by the Borough of Frenchtown for such utilities or improvements.

(b) The cost of the installation of improvements for the purposes of this section shall be estimated by the Borough Engineer based on documented construction costs for public improvements prevailing in the general area of the Borough. If the developer disagrees with the Borough Engineer's estimate, the developer may appeal the Borough Engineer's estimate to the County Construction Board of Appeals.

(2) The developer shall present two copies of the performance guarantee, in an amount equal to 120% of the approved performance guarantee estimate, to the Borough Clerk for approval as to form and execution by the Borough Attorney. The itemized cost estimate prepared by the Borough Engineer shall be appended to each performance guarantee posted by the obligor.

(3) The performance guarantee shall be made payable and deposited to Frenchtown Borough and shall be in the form of cash, irrevocable letter of credit, certified check or a surety. An irrevocable letter of credit shall be acceptable if it:

(a) 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 Subsection D(1) hereinabove;

(b) Is issued by a banking or savings institution authorized to do and doing business in this state;

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

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

[1] In the case of surety bonds, the developer shall be the principal and the bond shall be provided by a surety company operating pursuant to a valid certificate of authority issued pursuant to N.J.S.A. 17:17-1 et seq. Proof of such valid certificate of authority shall be furnished to the Borough when the surety bond is submitted.

[2] The Borough shall issue its receipt for such deposits and shall cause the same to be deposited in the name of the Borough to be retained as security for completion of all required improvements and to be returned to the applicant on 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 cost and expense of obtaining completion of all required improvements.

(4) At least 10% of the amount of the approved performance guarantee shall be deposited by the developer in cash with the Borough. The remaining 90% may be in cash, irrevocable letter of credit or surety bond. In the event of default, the 10% required cash deposit may be applied first to the completion of the required improvements and any bidding and legal costs associated therewith, and the remaining 90% cash, letter of credit or surety bond may thereafter be resorted to, if necessary, for the completion of the required improvements and any additional bidding and legal costs associated therewith.

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

(1) The developer has paid all fees required by this chapter;

(2) The developer has received all other governmental permits and approvals required by the Board's resolution granting subdivision or site plan approval;

(3) The developer has satisfied all conditions of approval required by the Board's resolution granting subdivision and/or site plan approval and all changes required by the Board to the developer's subdivision and/or site plans have been filed with and approved by the Borough Engineer;

(4) The developer's construction plans have been filed with and approved by the Borough Engineer;

(5) The developer has had a preconstruction meeting with the Borough Engineer for the purpose of forecasting and resolving problems that may arise during the course of construction; and

(6) The developer has furnished the Borough the performance guarantee required by Subsection D above.

F. Inspection and tests.

(1) 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 and/or other officials or professionals serving the Borough in order to insure satisfactory completion. The total cost of said inspections shall be the responsibility of the developer who shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer and/or other officials or professionals serving the Borough. Prior to the start of inspections, the developer shall deposit with the Borough Treasurer for payment of the inspection costs a sum equal to 5% of the amount of the estimated costs for the construction of the improvements as set forth in the itemized list prepared pursuant to Subsection D(1) or $500, whichever is the greater.

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

(b) For those developments for which the reasonably anticipated fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by the developer shall be 25% of the reasonably anticipated fees. When the balance drops to 10% of the reasonably anticipated fees because the amount deposited by the developer has been reduced by the amount paid to the Borough Engineer for inspection, the developer shall make additional deposits of 25% of the reasonably anticipated fees. The Borough Engineer shall not perform any inspection if insufficient funds to pay for those inspections are not on deposit.

(c) In the event that final approval is by stages or sections of development, these provisions for payment shall be applied by stage or section of the development.

(2) The Borough Engineer's office shall be notified at least two days prior to the commencement of the following phases of work so that he or a qualified representative may inspect the work:

(a) Road subgrade.

(b) Curb and gutter forms.

(c) Curbs and gutters.

(d) Road paving.

(e) Sidewalk forms.

(f) Sidewalks.

(g) Drainage pipes and other drainage construction.

(h) Street name signs.

(i) Monuments.

(j) Sanitary sewers.

(k) Detention and/or retention basins.

(l) Underground utilities.

(m) Seeding and plantings.

(3) In no case shall any paving work be done without permission from the Borough Engineer.

(4) Any improvement installed contrary to the plan or plat approved by the Borough shall constitute just cause to void the municipal approval.

(5) Any improvement installed without compliance with Subsections C and F(2) hereinabove shall constitute just cause for:

(a) Removal of the uninspected improvement;

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

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

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

(6) Inspection by the Borough of the installation of improvements and utilities shall not operate to subject the Borough of Frenchtown 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 owner and his contractor, if any.

G. Release.

(1) Upon substantial completion of all required street improvements (except for the top course) and appurtenant utility improvements, and the connection of same to the public system, the obligor may request of the Borough Council in writing, by certified mail addressed in care of the Borough Clerk, that the Borough Engineer prepare, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection D of this chapter, a list of all uncompleted or unsatisfactorily 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. Thereupon, 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 45 days after receipt of the obligor's request.

(2) 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, and remedy for the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the Borough Engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection D of this section.

(3) The Borough Council, by resolution, shall either approve the improvements determined to be completed 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 Subsection D of this section. This resolution shall be adopted not later than 45 days after receipt of the list and report prepared by the Borough Engineer. Upon adoption of the resolution by the 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 30% of the amount of the performance guarantee posted may be retained to ensure completion and acceptability of all improvements.

(4) If the Borough Engineer fails to send or provide the list and report as requested by the obligor within 45 days from receipt of the request, the obligor may apply to the court in a summary manner for an order compelling the Borough Engineer to provide the list and report within a stated time, and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(5) If the Borough Council fails to approve or reject the improvements determined by the Borough Engineer to be completed and satisfactory or reduce the performance guarantee for the completed and satisfactory improvements within 45 days from the receipt of the Borough Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the completed and satisfactory improvements and approval of a reduction in the performance guarantee for the approvable completed and satisfactory improvements in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee pursuant to Subsection D of this chapter; and the cost of applying to the court, including reasonable attorney's fees, may be awarded to the prevailing party.

(6) Any partial reduction granted in the performance guarantee pursuant to this section shall be applied to the cash deposit portion of the performance guarantee in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

(7) If any portion of the required improvements is rejected, the Borough Council may require the obligor to complete or correct such improvements and, upon completion or correction, the same procedure of notification as set forth hereinabove shall be followed.

(8) 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.

(9) 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 of Frenchtown for the reasonable cost of the improvements not completed or corrected and the Borough may either prior to or after receipt of the proceeds thereof complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of N.J.S.A. 40A:11-1 et seq.

(10) If the Board requires, as a condition of approval of an application for development, the installation of streetlighting on a dedicated public street connected to a public utility, then, upon notification in writing by the developer to the Board and to the Borough Council that the streetlighting on a dedicated public street has been installed and accepted for service by the public utility and that certificates of occupancy have been issued for at least 50% of the dwelling units and 50% of the floor area of the nonresidential uses on the dedicated public street or the portion thereof contained in the section or phase of the development having received final approval, the Borough shall, within 30 days following receipt of the notification, make appropriate arrangements with the public utility for, and assume the payment of, the costs of the streetlighting on the dedicated public street on a continuing basis. Compliance by the Borough with the provisions of this section shall not be deemed to constitute acceptance of the street by the Borough.

H. Conditions and acceptance of improvements. To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the Borough Council shall be deemed, upon the release of any performance guarantee required pursuant to Subsection D, to accept dedication for public use of streets or roads and any other improvements made thereon according to site plans and subdivision plats approved by the Board, provided that all of the following conditions have been met:

(1) Such improvements shall have been inspected and shall have received final approval by the Borough Engineer, and the Borough Engineer shall have certified in writing that the improvements are completed and that they comply with the requirements of this chapter and/or the subdivision or site plan approval;

(2) The developer shall have filed with the Borough Council a maintenance guarantee in the amount equal to not more than 15% of the cost of installing the improvements. The maintenance guarantee shall run for a period of two years from the date of final acceptance of the improvement(s) covered. The method of calculation used and the procedures and requirements governing such maintenance guarantee shall be identical to the method of calculation used and the procedures and requirements for a performance guarantee as set forth in Subsection D, except that the maintenance guarantee need not include cash. The requirements for a maintenance guarantee may be waived by the Borough Council if the Borough Engineer has certified that the improvements have been in continuous use for not less than two 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; and

(3) Three black-and-white prints plus a Mylar copy of the "as-built" plans and profiles of all utilities and roads, with certification signed and sealed by a New Jersey licensed professional engineer as to actual construction as approved by the Borough Engineer, shall be provided to the Borough Engineer.

I. Extension of time. The time allowed for installation of the improvements for which the performance guarantee has been provided may, but need not, be extended by the Borough Council by resolution, provided that the current municipal cost of installation of such improvements shall first be redetermined by the Borough Engineer, and if such current municipal cost is found to be greater than the cost as originally determined, the applicant shall be required to increase the amount of its performance guarantee to an amount equal to 120% of the cost of installation as redetermined pursuant to Subsection D as a condition of any such extension. In the event that the redetermined cost shall be less than the cost as originally determined, and in further event that the developer's performance guarantee exceeds 120% of such redetermined costs, the developer shall be entitled to a reduction of its performance guarantee to an amount equal to 120% of such redetermined costs.

§ 50-603 Off-tract improvements.

[Ord. No. 564, 9-6-2000; 12-26-2007 by Ord. No. 648]

A. Required improvements. Applicants shall be required, as a condition of approval of a subdivision, site plan, conditional use and/or variance, to pay the pro rata share of the cost of providing reasonable and necessary street improvements and/or water, sewerage and drainage facility improvements, and any necessary easements therefor, located off-tract but indicated in the circulation element and utility service element of the Borough's Master Plan and necessitated or required by construction or improvements within such subdivision or development. The criteria set forth in this section shall be utilized in determining the developer's proportionate pro rata monetary share for the necessary off-tract developments. Where a developer pays the amount determined as the pro rata share under protest, such developer shall institute legal action within one year of such payment or forfeit the right to recoup the funds in question.

B. Improvements to be constructed at the expense of the developer. In cases where the need for an off-tract improvement is 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 Frenchtown Borough or Hunterdon County, as appropriate, 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.

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

(1) Sanitary sewers. For sewerage facilities, including the installation, relocation or replacement of collector, trunk and interceptor sewers; the installation, relocation or replacement of other appurtenances associates therewith; and the upgrade/expansion of the Borough sewage treatment plant, the applicant's proportionate share shall be computed as follows:

(a) 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, NJDEPE, and any applicable Frenchtown Borough sewer design standards, including infiltration standards.

(b) 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 prorated 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 prorated 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] For upgrade, including infiltration and inflow corrections, and/or expansion of the Borough Sewage Treatment Plant, the new capacity beyond a design capacity of 150,000 gpd, which has been or will be made available via upgrade/expansion shall be compared with the capacity required for the developer's project, as follows:

Developer's cost	=	Capacity needed for developer's project
Total upgrade/expansion cost		New capacity from upgrade/expansion

[4] 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.

(2) Roadways. For street widening, alignment, channelization of intersections, construction of barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements not covered elsewhere, or the construction or reconstruction of new existing streets and other associated streets or traffic improvements, the applicant's proportionate cost shall be determined as follows:

(a) 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.

(b) 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 prorated share shall be computed as follows:

Developer's cost	=	Additional peak-hour traffic generated by the development
Total cost of roadway improvement and/or extension		Future total peak-hour traffic

(3) 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:

(a) The capacity and design of the drainage system to accommodate stormwater runoff shall be based on any method allowed by the then-current NJ Stormwater Management Rules, and shall be computed by the developer's engineer and approved by the Borough Engineer.

(b) 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 prorated 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

D. 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 Frenchtown Borough 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 10 years of the deposit, monies and interest shall be returned to the applicant subject to the provisions of § 50-601, Subsections A(6) and B(3)(d), or the letter of credit, as the case may be, shall be surrendered. An off-tract improvement shall be considered "begun" if Frenchtown Borough has taken legal steps to provide for the design and financing of such improvements.

E. Referral to Borough Council.

(1) 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 Board 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.

(2) The Borough Council, within 30 days after receipt of said list and description, shall determine and advise the Board concerning the procedure to be followed and suggested conditions of approval, if any, to adequately protect the Borough.

(3) In the event that the Board 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 that the applicant 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 Board shall condition its approval upon the subsequent determination of the Borough Council.

F. Implementation of off-tract improvements.

(1) In all cases, after preliminary approval is granted, developers shall be required to enter into an agreement or agreements with Frenchtown Borough in regard to off-tract improvements, in accordance with this chapter.

(2) As required by the pro rata determination of the Council, 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 Subsection D hereinabove, to secure the developer's pro rata share of the eventual cost of providing future structural improvements based upon the standards expressed herein.

(3) As required by the pro rata determination of the Council, 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 Borough 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 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 Borough for such expense.

(4) If the Council has determined 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 Borough, in addition to the amount of any special assessments against the subject property for benefits conferred by the improvement or improvements, for 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.

(5) If the Council has determined 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 of Frenchtown, County of Hunterdon, State of New Jersey, and any departments, authorities and agencies thereof with jurisdiction therein, whereby the applicant shall be reimbursed by the Borough 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.

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

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

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

(c) 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 development tract and the general area of the municipality in which the same is located; and

(d) 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.