Borough of Oceanport, NJ Article XIII Fees, Guarantees and Off-Tract Improvements

§ 390-80 Fees and escrow accounts.

A. Nonrefundable application fees. Each applicant who files an application before the Oceanport Borough Planning Board shall pay the applicable application fee listed below for such application. The application fee provided for herein shall be nonrefundable and is required for purposes of offsetting the administrative and clerical costs of operating the Planning Board and for costs which may be incurred by the Planning Board in the normal processing of such applications (exclusive of the legal, planning, engineering and other professional services deemed necessary by the Planning Board).

B. Creation of escrow accounts.

(1) In addition to the nonrefundable application fees referred to above, each applicant before the Planning Board shall establish and make the required payments to an escrow account to be maintained by the Borough for the purpose of providing sufficient moneys to pay the costs of review by professionals engaged by the Planning Board. The requirement that an escrow account be established shall apply regardless of whether the application is to be heard before the Planning Board.

(2) Upon submitting an application for development to either the Planning Board, the applicant shall be required to deposit and execute an escrow agreement requiring the applicant to pay all necessary and reasonable costs incurred by the Borough for technical and professional review by the approving authority. The escrow agreement shall be in a form approved by the Borough Council. The amounts specified below to be placed in escrow are estimates of professional fees only and should not be considered as a minimum or maximum fee which may be required of the applicant to compensate the Borough for legal, engineering, traffic engineering, planning or other professional services. Said fees must be paid prior to either Board certifying the application as complete; provided, however, that payment of the fee in and of itself shall not be deemed as making the application complete.

(a) In the event that the amounts required to be posted by this section are not sufficient to cover the professional charges incurred by the Borough of Oceanport for such application, then the applicant shall pay the amount required which is over and above the funds previously collected and shall not receive any approvals or other permits from the Borough before such fees are paid in full.

(b) In the event the amounts posted as fees shall be in excess of the amount required for all professional review, the excess funds shall be returned to the applicant within 30 days of the issuance of a certificate of occupancy for the project which the application fee covers.

(c) The Board Secretary shall periodically review the balance of all escrow accounts and whether additional funds are required as provided for hereinafter. In the event additional funds are required, the Board Secretary shall notify the applicant of the amounts required as additional fees. In the event the applicant refuses or fails to make the payments required within 10 days of demand, the Board Secretary shall notify the approving authority. If the additional fees are not paid, the Planning Board may deny the application before it, and no other permits or certificates shall be issued by the Borough to the applicant for the applicable project until payment is made in full. In the event additional fees are required, the applicant shall pay such fees to the Borough in accordance with the same agreement already entered into or under any additional terms which may be agreed to by the applicant and the approving authority.

(3) Before issuing a construction permit or certificate of occupancy for any element of a project, the applicable code official for the Borough of Oceanport shall first determine from the applicable Board Secretary whether there are sufficient escrow funds to pay all pending or reasonably anticipated bills attributable for professional review to the particular project. The applicable code officer shall not issue the requested construction permit or certificate of occupancy until the amounts which are due or necessary to provide sufficient funds in escrow to pay such pending or reasonably anticipated bills are paid in full by the applicant.

C. Fees and escrows. Refer to Chapter 204 for applicable fees and escrows.

§ 390-81 Improvement and maintenance guarantees.

A. Before recording final subdivision plats or as a condition of final site plan approval or as a condition to the issuance of a zoning permit pursuant to N.J.S.A. 40:55D-65d, the approving Board, for the purpose of assuring the installation and maintenance of on- and off-tract (pursuant to N.J.S.A. 40:55D-42) improvements, shall require and accept, in accordance with the standards adopted by this chapter, the following:

(1) The furnishing of a performance guarantee in favor of the Borough of Oceanport in an amount not to exceed 120% of the cost of installation, which cost shall be determined by the Borough Engineer according to the method of calculation set forth in § 390-82 for improvements which the Board may deem necessary or appropriate, including, but not limited to: streets, grading, pavement, gutters, curbs, sidewalks, streetlighting, shade trees, surveyor's monuments as shown on the final subdivision plat and required by the Map Filing Law (N.J.S.A. 46:23-9.9 et seq.), culverts, storm sewers, drainage structures, erosion control and sedimentation control devices, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping.

(a) 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.

(2) Provision for a maintenance guarantee to be posted with the Borough Council for a period not to exceed two years after final acceptance of the improvement, in an amount not to exceed 15% of the cost of the improvement, which cost shall be determined by the Borough Engineer according to the method of calculation set forth in § 390-82. In the event that other governmental agencies or public utilities automatically will own the utilities to be installed or the improvements are covered by a performance or maintenance guarantee to another governmental agency, no performance or maintenance guarantee, as the case may be, shall be required by the Borough for such utilities or improvements.

B. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the Borough Council by resolution. As a condition or as part of any such extension, the amount of any performance guarantee shall be increased or reduced, as the case may be, to an amount not to exceed 120% of the cost of the installation, which cost shall be determined by the Borough Engineer according to the method of calculation set forth in § 390-82 as of the time of the passage of the resolution.

C. If the required improvements are not completed or corrected in accordance with the performance guarantee, the obligor and surety, if any, shall be liable thereon to the Borough for the reasonable cost of the improvements not completed or corrected, and the Borough may, either prior to or after the receipt of the proceeds thereof, complete such improvements. Such completion or correction of improvements shall be subject to the public bidding requirements of the Local Public Contracts Law (N.J.S.A. 40A:11-1 et seq.).

D. Estimate of cost for installation of improvements. A performance guarantee estimate shall be prepared by the Borough Engineer, setting forth all requirements for improvements as fixed by the Board and their estimated cost. The estimated cost of the installation of improvements determined by the Borough Engineer shall be based on documented construction costs for public improvements prevailing in the general area of the Borough. The developer may appeal the Borough Engineer's estimate to the Borough Council. The Borough Council shall decide the appeal within 45 days of receipt of the appeal, in writing, by the Borough Clerk. After the developer posts a guarantee with the Borough based on the cost of the installation of improvements as determined by the Borough Council, he may institute legal action within one year of the posting in order to preserve the right to a judicial determination as to the fairness and reasonableness of the amount of the guarantee.

(1) The cost of the installation of improvements for the purposes of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53) shall be estimated by the Municipal Engineer based on documented construction costs for public improvements prevailing in the general area of the municipality. The developer may appeal the Municipal Engineer's estimate to the County Construction Board of Appeals established under Section 9 of P.L. 1975, c. 217 (N.J.S.A. 52:27D-127).

E. Approval by Borough Solicitor. The applicant shall present two copies of the performance guarantee in an amount equal to the amount of the approved performance guarantee estimate for approval as to form.

F. Bonding and cash requirements.

(1) The performance guarantee posted by the applicant shall be in the form acceptable to the Borough Solicitor. Performance and maintenance bonds shall be provided by an acceptable surety company licensed to do business within the State of New Jersey with a rating of no less than a B+ by AM Best. The performance guarantee in favor of the Borough shall be in an amount not to exceed 120% of the cost of the installation and improvements. The Chief Financial Officer shall issue its receipt for such cash deposits and shall cause the same to be deposited in a bank named by the Borough for this purpose to be retained as security for completion of all requirements and to be returned to the developer on completion of all required work and expiration of the period of maintenance guarantee or, in the event of default on the part of the applicant, to be used by the Borough of Oceanport to pay the cost and expense of obtaining completion of all requirements.

(2) The Borough shall accept a performance guarantee or maintenance guarantee for the purposes herein which is an irrevocable letter of credit 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 N.J.S.A. 40:55D-53;

(b) Is issued by a banking or savings institution authorized to and doing business in the State of New Jersey;

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

(d) Permits the Borough to draw upon the letter of credit if the obligor fails to furnish another letter of credit which complies with the provisions of this subsection 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.

G. Inspections, tests, and as-built requirements.

(1) All improvements and utility installations 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 applicant, and he or she shall deposit with the Borough Chief Financial Officer for placement in an escrow account an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the amount of the performance guarantee estimate of the cost of improvements pursuant to § 390-82, Off-tract improvements. The obligor shall reimburse the Borough for all reasonable inspection fees paid to the Borough Engineer for the foregoing inspection of improvements. For those developments for which the reasonably anticipated fees are $10,000 or greater, the fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the anticipated fees. When the balance on deposit drops to 10% of the anticipated fees because of payments to the Borough Engineer for inspection, the developer shall make additional deposits of 25% of the anticipated fees. The Borough Engineer shall not perform any inspection if sufficient funds to pay for such inspection are not on deposit.

(2) Site maintenance. It shall be the responsibility of the developer to maintain the entire construction site in a safe and orderly condition during construction. Necessary steps shall be taken by the developer to protect occupants of the construction site and the general public from hazardous and unsightly conditions during the entire construction period. Subsections G(2)(a)through (f) list the necessary site operations and activities that shall be maintained on construction sites.

(a) Every effort shall be made by the developer's contractor to close excavations by the end of the workday. Unavoidable excavations left open during nonconstruction hours shall be enclosed by fencing or barricades or covered by appropriate steel traffic plates during nonconstruction hours. Movable barricades shall be equipped with yellow flashing hazard markers or other lighting accepted by the Borough Engineer during the hours of darkness. All locations and activities on the construction site that are hazardous shall be marked with signs indicating such hazard.

(b) The excavation of previously installed sidewalk and pavement areas which provide access to an occupied building on a site shall be clearly marked with signs and barricades. Alternate safe access shall be provided for pedestrians to the occupied buildings and motor vehicles to the site. Safe vehicular and pedestrian access to occupied buildings in the site or subdivision shall be provided at all times.

(c) Materials stored on the site shall be screened from the view of next-door occupants of residential property and the traveling public on public roads.

(d) Construction equipment and trucks shall not be stored within 100 feet of occupied residential buildings during nonconstruction hours.

(e) Construction debris, including, but not limited to, scrap materials, cartons, boxes, and wrappings, shall be removed daily from the construction at the end of each working day or placed in appropriate dumpsters.

(f) Whenever construction activities take place within or adjacent to any traveled way or interfere with existing traffic patterns in any manner, suitable warning signs, conforming to the requirements of the Manual on Uniform Traffic Control Devices, shall be erected and maintained by the developer.

(g) Should the developer fail in his obligation to maintain the site or subdivision in a safe and orderly condition, the Borough may, on five days' written notice, or immediately in the case of hazard to life, health or property, undertake whatever work may be necessary to return the site or subdivision to a safe and orderly condition and deduct the cost thereof from the 10%-cash-or-certified-check portion of the performance guaranty. Upon notice of such deduction, the developer shall, within 10 days, restore the full 10%-cash balance, or his performance guaranty will be held to be void, and the Borough may take action as if final plat approval had not been obtained.

(h) The Construction Official shall, upon receiving notice from the Borough Engineer that a developer is in violation of this subsection, suspend further issuance of certificates of occupancy and building permits and may order cessation of work on any outstanding permits until such time as the condition is rectified.

(3) In no case shall any paving work or other construction activities requiring inspection by the Borough Engineer be started without his or her permission. At least 48 hours' notice shall be given to the Borough Engineer or qualified representative assigned to Oceanport Borough prior to any such construction so that the required inspection of improvements may be scheduled and inspected.

(4) Any improvement installed without notice for inspection pursuant to Subsection G(3) above 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.

(5) Final inspection and as-built drawings. A final inspection of all improvements and utilities shall be undertaken by the Borough Engineer to determine whether the work is satisfactory and in agreement with the approved final plan drawings and Borough specifications or as a field change approved in writing by the Borough Engineer. Any minor deviation from the final approved plan may be approved by the Borough Engineer. Any deviation deemed substantial by the Borough Engineer shall require submission of an amended final site plan or subdivision, as the case may be, to the board of jurisdiction. If the improvements have been constructed under a performance guarantee after approval of a subdivision or site plan, the developer shall submit an as-built plan showing as-built grades, profiles and sections and locations of all subsurface utilities, including, but not limited to, stormwater management piping, end walls, headwalls, control systems and basins; lawn and roof drainage; sanitary sewage conveyance and disposal systems; public and individual waterlines and control valves; natural and propane gas lines; telephone, cable television, and telecommunications conduits; monuments and other property markers; and any other utilities or improvements installed. The as-built plan shall be certified by a licensed New Jersey professional land surveyor. If any improvements are constructed prior to final plat approval, the final plat shall reflect all changes and as-built conditions and be so certified. As-built plan(s) shall be submitted on reproducible media, CAD file or other media as directed by the Borough Engineer.

(6) Inspection of any work by the Borough Engineer or authorized representative shall not be considered to be final approval or rejection of the work but shall only be considered to be a determination of whether or not the specific work involved was being done to Borough specifications or other required standards at the time of inspection. Any damage to such work or other unforeseen circumstances, including, but not limited to, the weather, other construction, changed physical or topographical conditions, and settlement of soils between the time of installation and the time of a request for full or partial performance guarantee release shall be the entire responsibility of the developer, and no work shall be considered accepted until release of the performance guarantee. Upon a final inspection report, action will be taken to release or declare in default the performance guarantee covering such improvements and utilities.

(7) Inspection by the Borough of the installation of improvements and utilities by the applicant shall not subject the Borough to liability for claims, suits or any other liability of any kind that may at any time arise because of defects or negligence during construction or at any time thereafter; it is recognized that the responsibility to maintain safe conditions at all times during construction and to provide proper utilities and improvements is upon the applicant and his contractors, if any. No declaration, written or otherwise, shall be made by the Borough Council, the Borough Engineer or any of their agents, employees, or other representatives as a precedent to the release of payments to contractors by the developer.

H. Reduction of guarantees.

(1) Upon substantial completion of all required on- and off-site improvements (except for the top course of road paving) 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 § 390-82, 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. 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 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.

(3) 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. 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 for each line item may be retained to ensure completion and acceptability of all improvements.

For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance guarantee attributable to each approved improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the Municipal Engineer and appended to the performance guarantee pursuant to Subsection H(1) of this section, including any contingency factor applied to the cost of installation. If the sum of said improvements would exceed 70% of the total amount of the performance guarantee, the municipality may retain 30% of the amount of the total performance guarantee to ensure completion and acceptability of all improvements, as provided above.

(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 attorneys' fees, may be awarded to the prevailing party.

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 45 days from the receipt of the Borough Engineer's list and report, the obligor may apply to the court in a summary manner for an order compelling, within a stated time, approval of the complete and satisfactory improvements and approval of a reduction in the performance guarantee for the complete and satisfactory improvements in accordance with the itemized cost estimate prepared by the Borough Engineer and appended to the performance guarantee, and the cost of applying to the court, including reasonable attorneys' fees, may be awarded to the prevailing party.

(5) In the event that the obligor has made a cash deposit with the Borough or approving authority as part of the performance guarantee, then any partial reduction granted in the performance guarantee pursuant to this subsection shall be applied to the cash deposit in the same proportion as the original cash deposit bears to the full amount of the performance guarantee.

(6) If any portion of the required improvements is rejected, the approving authority may require the obligor to complete or correct such improvements, and, upon completion or correction, the same procedure of notification as set forth in this section shall be followed.

(7) Nothing herein, however, 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.

(8) The obligor shall reimburse the municipality for all reasonable inspection fees paid to the Municipal Engineer for the foregoing inspection of improvements' provided that the municipality may require of the developer a deposit for the inspection fees in an amount not to exceed, except for extraordinary circumstances, the greater of $500 or 5% of the cost of improvements, which cost shall be determined pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4). For those developments for which the inspection fees are less than $10,000, fees may, at the option of the developer, be paid in two installments. The initial amount deposited by a developer shall be 50% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall deposit the remaining 50% of the inspection fees. For those developments for which the inspection fees are $10,000 or greater, fees may, at the option of the developer, be paid in four installments. The initial amount deposited by a developer shall be 25% of the inspection fees. When the balance on deposit drops to 10% of the inspection fees because the amount deposited by the developer has been reduced by the amount paid to the Municipal Engineer for inspection, the developer shall make additional deposits of 25% of the inspection fees. The Municipal Engineer shall not perform any inspection if sufficient funds to pay for those inspections are not on deposit.

(9) In the event that final approval is by stages or sections of development pursuant to N.J.S.A. 40:55D-38, the provisions of this section shall be applied by stage or section.

(10) To the extent that any of the improvements have been dedicated to the municipality on the subdivision plat or site plan, the municipal governing body shall be deemed, upon the release of any performance guarantee required pursuant to Subsection H(1) of this section, to accept dedication for public use and any other improvements made thereon according to site plans and subdivision plats approved by the approving authority, provided that such improvements have been inspected and have received final approval by the Municipal Engineer.

I. Conditions for acceptance of improvements; maintenance guarantee. The approval of any plat under this chapter by the approving Board or Borough Council, or both, shall in no way be construed as acceptance of any street or drainage system or any other improvement required by this chapter, nor shall such plat approval obligate the Borough in any way to maintain or exercise jurisdiction over such street or drainage system or other improvement. No improvement shall be accepted by the Borough Council unless and until all of the following conditions have been met:

(1) The Borough Engineer shall have certified, in writing, that the improvements are complete and that they comply with the requirements of this chapter.

(2) The final plat shall have been approved by the Board.

(3) Maintenance guarantee.

(a) After final acceptance of all improvements, the developer shall have filed with the Borough Council a maintenance guarantee in an amount equal to not more than 15% of the original estimate of the cost of installing the improvements and which shall run for a period not exceeding two years. 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 years from the date the Borough Engineer certified completion of such improvements and that, during this period, the developer has maintained the improvements in a satisfactory manner.

(b) As-built plans and profiles (one reproducible and two paper copies) of all utilities and roads shall be submitted to the administrative officer, with certification signed and sealed by a New Jersey licensed professional engineer as to the actual construction as approved by the Borough Engineer provided.

(c) In the event that any other Borough or governmental agencies or public utilities automatically will own the utilities to be installed, or the improvements are covered by a maintenance guarantee to another municipal or governmental agency, no maintenance guarantee shall be required by the Borough for such utilities or improvements.

J. Guarantee status reports. The Chief Financial Officer shall issue a semiannual status report on all non-cash performance and maintenance guarantees held by the Borough. The report shall give an accounting of each guarantee, specifically noting its expiration date. The report shall be submitted to the Borough Engineer, Construction Official, Zoning Officer, and the Secretary of the Planning Board.

K. Certificate of occupancy. Occupancy permits will be issued only when the installation of any curbs, all utilities, all functioning water supply and sewage treatment facilities, all necessary storm drainage to ensure proper drainage of the lot and surrounding land, rough grading of lots, base course for the driveway and base course for the streets are installed to serve the lot and structure for which the permit is requested. Streets, if installed prior to final approval, shall not be paved until all heavy construction is complete; shade trees shall not be planted until all grading and earthmoving is completed; and seeding of grass areas shall be the last operation. The issuance of a certificate of occupancy will follow the procedures outlined in this chapter and the chapter of the Borough Code administering the Uniform Construction Code.[1] A separate certificate of occupancy shall also be required when any change occurs in the use or occupancy of an existing structure.

[1] Editor's Note: See Ch. 170, Construction Codes, Uniform.

§ 390-82 Off-tract improvements.

This section is intended to ensure a pro rata share allocation of the costs for off-tract improvements necessitated by new development. As a condition of final subdivision or site plan approval, the Planning Board may require a developer to pay his/her pro rata share of the cost of providing reasonable and necessary improvements for off-tract costs directly related to the development. These costs may include that of land and/or easements for, and construction of, improvements to circulation, water, sewerage, and drainage facilities which are located off-tract of the property limits of the subdivision or development but for which substantially all the cost of said improvements is necessitated or required directly by the development. In addition, a development may be liable for its share of the cost of the impact of the development to Borough and/or regional capital improvements, provided that the cost shall not duplicate off-tract improvements for which the developer is primarily responsible. The Planning Board shall provide in its resolution of approval the basis of the required improvements. Where a developer pays the amount determined as his pro rata share under protest, they shall institute legal action within one year of such payment in order to preserve the right to a judicial determination as to the fairness and reasonableness of such amount.

A. Calculation of proportionate costs.

(1) Full allocation. In cases where off-tract improvements are necessitated by the proposed development, and where no other property owner(s) receive(s) a special benefit thereby, the developer may be required, at his sole expense and as a condition of approval, to provide and install such improvements. In such case where the Planning Board determines that the full improvement is required to service this development, the developer shall fully install the entire improvement at his expense with no reimbursement.

(2) Proportionate allocation.

(a) Where it is determined that some properties outside the development will also be benefitted by the off-tract improvement, the following criteria shall be utilized in determining the proportionate share of the cost of such improvements to the developer.

(b) Allocation formula.

[1] Roadways. The applicant's proportionate share of street improvements, alignment, channelization, barriers, new or improved traffic signalization, signs, curbs, sidewalks, trees, utility improvements uncovered elsewhere, the construction or reconstruction of new or existing streets, and other associated street or traffic improvements shall be as follows:

[a] The Municipal Engineer, traffic engineer or planner shall provide the applicant with the existing and reasonably anticipated future peak-hour traffic for the off-tract improvement.

[b] The applicant shall furnish a plan for the proposed off-tract improvement which shall include the estimated peak-hour traffic generated by the proposed development and the proportion thereof which is to be accommodated by the proposed off-tract improvement. The ratio of the peak-hour traffic generated by the proposed development which is to be accommodated by the off-tract improvement to the future additional peak-hour traffic anticipated to impact the proposed off-tract improvement shall form the basis of the proportionate share. The proportionate share shall be computed as follows:

Total cost of enlargement or improvement		Capacity of enlargement or improvement (peak-hour traffic)
	=
Developer's cost		Development peak-hour traffic to be accommodated by the enlargement or improvement

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

[a] The capacity and the design of the drainage system to accommodate stormwater runoff shall be based on the standards specified in § 390-54 of this chapter and related appendixes, computed by the developer's engineer and approved by the Municipal Engineer.

[b] The capacity of the enlarged, extended, or improved system required for the subdivision and areas outside of the developer's tributary to the drainage system shall be determined by the developer's engineer subject to approval of the Municipal Engineer. The plans for the improved system shall be prepared by the developer's engineer and the estimated cost of the enlarged system calculated by the Municipal Engineer. The prorated share for the proposed improvement shall be computed as follows:

Total cost of enlargement or improvement		Capacity of enlargement or improvement (total capacity expressed in cubic feet per second)
	=
Developer's cost		Development-generated peak rate of runoff expressed in cubic feet per second to be accommodated by the enlargement of improvement

B. Future funds. Where the proposed off-tract improvement is to be undertaken at some future date, the monies required for the improvement shall be deposited in a separate interest-bearing account to the credit of the Borough of Oceanport until such time as the improvement is constructed. If the off-tract improvement is not begun within 10 years of deposit, all monies and interest shall be returned to the applicant.

§ 390-83 Administrative guidelines.

A. The Chief Financial Officer of a municipality shall make all of the payments to professionals for services rendered to the municipality or approving authority for review of applications for development, review and preparation of documents, inspection of improvements or other purposes under the provisions of PL. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.). Such fees or charges shall be based upon a schedule established by resolution. The application review and inspection charges shall be limited only to professional charges for review of applications, review and preparation of documents and inspections of developments under construction and review by outside consultants when an application is of a nature beyond the scope of the expertise of the professionals normally utilized by the municipality. The only costs that shall be added to any such charges shall be actual out-of-pocket expenses of any such professionals or consultants, including normal and typical expenses incurred in processing applications and inspecting improvements. The municipality or approving authority shall not bill the applicant, or charge any escrow account or deposit authorized under Subsection B of this section, for any municipal clerical or administrative functions, overhead expenses, meeting room charges, or any other municipal costs and expenses except as provided for in this section, nor shall a municipal professional add any such charges to his bill. If the salary, staff support and overhead for a municipal professional are provided by the municipality, the charge shall not exceed 200% of the sum of the products resulting from multiplying: 1) the hourly base salary, which shall be established annually by ordinance, of each of the professionals by 2) the number of hours spent by the respective professional upon review of the application for development or inspection of the developer's improvements, as the case may be. For other professionals, the charge shall be at the same rate as all other work of the same nature by the professional for the municipality when fees are not reimbursed or otherwise imposed on applicants or developers.

B. If the municipality requires of the developer a deposit toward anticipated municipal expenses for these professional services, the deposit shall be placed in an escrow account pursuant to Section I of P.L. 1985, c. 315 (N.J.S.A. 40:55D-53.1). The amount of the deposit required shall be reasonable in regard to the scale and complexity of the development. The amount of the initial deposit required shall be established by ordinance. For review of applications for development proposing a subdivision, the amount of the deposit shall be calculated based on the number of proposed lots. For review of applications for development proposing a site plan, the amount of the deposit shall be based on one or more of the following: the area of the site to be developed, the square footage of buildings to be constructed, or an additional factor for circulation-intensive sites, such as those containing drive-through facilities. Deposits for inspection fees shall be established in accordance with Subsection h of Section 41 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-53).

C. Each payment charged to the deposit for review of applications, review and preparation of documents and inspection of improvements shall be pursuant to a voucher from the professional, which voucher shall identify the personnel performing the service, and for each date the service is performed, the hours spent to 1/4-hour increments, the hourly rate and the expenses incurred. All professionals shall submit vouchers to the Chief Financial Officer of the municipality on a monthly basis in accordance with schedules and procedures established by the Chief Financial Officer of the municipality. If the services are provided by a municipal employee, the municipal employee shall prepare and submit to the Chief Financial Officer of the municipality a statement containing the same information as required on a voucher, on a monthly basis. The professional shall send an informational copy of all vouchers or statements submitted to the Chief Financial Officer of the municipality simultaneously to the applicant. The Chief Financial Officer of the municipality shall prepare and send to the applicant a statement which shall include an accounting of funds listing all deposits, interest earnings, disbursements, and the cumulative balance of the escrow account. This information shall be provided on a quarterly basis if monthly charges are $1,000 or less, or on a monthly basis if monthly charges exceed $1,000. If an escrow account or deposit contains insufficient funds to enable the municipality or approving authority to perform required application reviews or improvement inspections, the Chief Financial Officer of the municipality shall provide the applicant with a notice of the insufficient escrow or deposit balance. In order for work to continue on the development or the application, the applicant shall, within a reasonable time period, post a deposit to the account in an amount to be agreed upon by the municipality or approving authority and the applicant. In the interim, any required health and safety inspections shall be made and charged back against the replenishment of funds.

D. The following closeout procedure shall apply to all deposits and escrow accounts established under the provisions of P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.), 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 Section 41 of P.L. 1975, c. 291 (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 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 in accordance with Section I of P.L. 1985, c. 315 (N.J.S.A. 40:55D-53.1) shall be refunded to the developer along with the final accounting.

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 approving authority or upon review of compliance with conditions of approval, or review of requests for modification or amendment made by the applicant. A professional shall not review items which are subject to approval by any state environmental agency and not under municipal jurisdiction except to the extent consultation with a state agency is necessary due to the effect of state approvals in the subdivision or site plan. 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.

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

§ 390-84 Appeal of escrow charges.

A. An applicant shall notify, in writing, the governing body, with copies to the administrative officer, the approving authority and the professional, whenever the applicant disputes the charges made by a professional for service rendered to the municipality in reviewing applications for development, review and preparation of documents, inspection of improvements, or other charges made pursuant to the provisions of P.L. 1975, c. 291 (N.J.S.A. 40:55D-1 et seq.). The governing body, or its designee, shall, within a reasonable time period, attempt to remediate any disputed charges. If the matter is not resolved to the satisfaction of the applicant, the applicant may appeal to the County Construction Board of Appeals established under Section 9 of P.L. 1975, c. 217 (N.J.S.A. 52:27D-127), any charges to an escrow account or a deposit by any municipal professional or consultant, or the cost of the installation of improvements estimated by the Municipal Engineer pursuant to Section 15 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.4). An applicant or his authorized agent shall submit the appeal in writing to the County Construction Board of Appeals. The applicant or his authorized agent shall simultaneously send a copy of the appeal to the municipality, approving authority, and any professional whose charges is the subject of the appeal. An applicant shall file an appeal within 45 days from receipt of the informational copy of the professional's voucher required by Subsection c of Section 13 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.2); except that if the professional has not supplied the applicant with an informational copy of the voucher, then the applicant shall file his appeal within 60 days from receipt of the municipal statement of activity against the deposit or escrow account required by Subsection c of Section 13 of P.L. 1991, c. 256 (N.J.S.A. 40:55D-53.2). An applicant may file an appeal for an ongoing series of charges by a professional during a period not exceeding six months to demonstrate that they represent a pattern of excessive or inaccurate charges. An applicant making use of this provision need not appeal each charge individually.

B. The County Construction Board of Appeals shall hear the appeal, render a decision thereon, and file its decision with a statement of the reasons therefor with the municipality or approving authority not later than 10 business days following the submission of the appeal, unless such period of time has been extended with the consent of the applicant. The decision may approve, disapprove, or modify the professional charges appealed from. A copy of the decision shall be forwarded by certified or registered mail to the party making the appeal, the municipality, the approving authority, and the professional involved in the appeal. Failure by the Board to hear an appeal and render and file a decision thereon within the time limits prescribed in this subsection shall be deemed a denial of the appeal for purpose of a complaint, application, or appeal to a court of competent jurisdiction.

C. The County Construction Board of Appeals shall provide rules for its procedure in accordance with this section. The Board shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, and the provisions of the "County and Municipal Investigations Law," P.L. 1953, c. 38 (N.J.S.A. 2A:6AA-1 et seq.), shall apply.

D. During the appeal period, the municipality or approving authority shall continue to process, hear, and decide the application for development, and to inspect the development in the normal course, and shall not withhold, delay, or deny reviews, inspections, signing of subdivision plans or site plans, the reduction or 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 under this subsection. The Chief Financial Officer may pay charges out of the appropriate escrow account or deposit for which an appeal has been filed. If a charge is disallowed after payment, the Chief Financial Officer shall reimburse the deposit or escrow account in the amount of any such disallowed charge or refund the amount to the applicant. If a charge is disallowed after payment to a professional or consultant who is not an employee of the municipality, the professional or consultant shall reimburse the municipality in the amount of any such disallowed charge.