Pursuant to authorization granted by N.J.S.A. 40:55D-42, where the City's street(s), sewerage, or drainage facilities will not adequately support the needs of the proposed project, the Approving Authority shall require, as a condition of preliminary site plan or subdivision approval, that the applicant install or pay its pro rata share of costs associated with the Improvement. The improvement may include the acquisition of land, or rights in land, necessitated or required by the anticipated impacts of the proposed project. The improvement must be clearly, directly, and substantially related to the proposed project.

Where an Approving Authority requires, as a condition of the approval of the proposed project, that the applicant install or pay for costs associated with an improvement, the resolution memorializing the approval:

Where fee simple title to, or an easement over, the land upon which the improvement is to be constructed must be obtained through eminent domain, the approval of the proposed project shall be conditioned upon the City obtaining the fee simple title to, or an easement over, the land through eminent domain.

System adequate to service existing needs. Where there is a need to upgrade an existing facility or improvement due to its insufficient capacity, or other inadequacies, to service the needs of the proposed project, but the existing facility or improvement is adequate to service the needs of the present users, a proportionate allocation shall not be made, and applicant shall be responsible for assuming all costs and expenses associated with or related to the improvement.

No other pending contributions. In cases where the improvement will benefit only the proposed project and where neither a third-party developer, the City, nor any other governmental entity has planned, programmed, or accepted responsibility for any portion of the improvement, the applicant shall be responsible, at the applicant's sole cost and expense, and as a condition of approval, to provide for and install the improvement, after review and approval by the City Engineer of all such plans related to the improvement. The improvement shall be installed and completed prior to the issuance of the temporary or final certificate of occupancy for the proposed project.

Other pending contributions.

Future developers benefit from improvement. Where an applicant is required to install or construct an improvement (e.g., the extension of a sewer line to the proposed project), and future developers benefit from same, then the original developer shall be entitled to a pro rata reimbursement from the future developer, if said subsequent benefit accrues within 10 years from the date the improvement was completed and accepted by the City Engineer. Where a pro rata share must be reimbursed, the following procedure shall take place:

Nothing herein shall be construed as to prevent the Approving Authority and the applicant from calculating an alternative method to allocate costs, or to use an alternative method to make payments for pro rata reimbursements, than that which is set forth herein, and requesting that the governing body approve and adopt such calculation as it may concern the particular application given the unique and distinguishable characteristics of such application for development, as long as such alternative method is based on fair and reasonable standards, and the reason for adopting such alternative method is clearly set forth and agreed to, on the record, by both the Approving Authority and the applicant and provided to the governing body.

Where an applicant pays the amount determined as its portion of the total cost of the improvement under protest, the applicant 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.

Determination of the applicant's pro rata share of costs related to, or arising from, improvements involving street and intersection improvements, alignments, 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 intersections, and other associated street or traffic improvements, shall include but not be limited to evaluation of the following:

The applicant's traffic consultant shall provide a trip distribution that will distribute traffic to the surrounding roadway system. The applicant's engineer shall show the percentage of the P.M. traffic that the applicant's traffic will be of the future build traffic at each intersection by approach. If, as a result of a significant impact from the proposed project, an improvement is required on one approach of an intersection only, defined as an approach where the majority of traffic on the approach caused the need for the improvement on that approach to maintain an adequate level of service, the applicant's pro rata share of the intersection shall be calculated as set forth below. If the improvement does not exist, or the existing system does not have adequate capacity to accommodate the anticipated volumes as set forth in the Traffic Study, the applicant's pro rata share shall be an amount equal to the larger of:

Determination of the applicant's pro rata share of costs related to, or arising from, improvements involving stormwater and drainage improvements including the installation, relocation and replacement of storm drains, bridges, culverts, catch basins, manholes, riprap, detention or retention basins, improved drainage ditches and appurtenances associated therewith, shall include but not be limited to evaluation of the following:

If the required improvements do not exist, or if the existing system does not have adequate capacity to accommodate reasonably anticipated volumes, the applicant's pro rata share shall be an amount equal to the larger of:

The capacity and design of sanitary sewer systems shall be based on "Rules and Regulation for the Preparation and Submission for Sewerage Systems," New Jersey Department of Environmental Protection, as well as any and all other design and specifications standards as may be set forth by the City and/or the professionals employed or retained by the City and who are responsible for approval and oversight of such systems.

Where sanitary sewer systems are already in place at the time that the applicant's proposed project is approved, the evaluation of the existing sanitary sewer system shall include but not be limited to:

The applicant shall be responsible for the entire cost of any improvement involving sanitary sewer systems, including distribution facilities, the installation, relocation or replacement of collector, trunk and interceptor sewers, and the installation, relocation or replacement of other appurtenances associated therewith, that are necessary as a direct result of the proposed development. This shall apply both to the need for any new systems, facilities, appurtenances, etc., as well as the cost to upgrade an existing facility or improvement where said facility or improvement has either insufficient capacity or is otherwise inadequate to service the proposed development but is adequate to service the needs of the present users.

In the event that a new system and/or facilities or appurtenances associated therewith is/are necessary where none exists, but said system and/or facilities or appurtenances associated therewith will be shared with other users who do not now benefit from the same, the applicant's partial cost of the improvement shall be as follows:

Where the improvement is to be undertaken at a future date, the funds required to pay for the installation or construction of the Improvement shall be paid by the applicant prior to the signing of the final plans or plat by the Board Chair, Board Secretary and City Clerk.

Trust funds.

If the improvement has not begun within 20 years from the date of the final certificate of occupancy being issued for the proposed project, then and in such event, all monies and interest shall be returned to the applicant. An improvement shall be considered "begun" if the City has taken steps to provide for design and/or financing of the improvement.

Any money received by the City for an improvement to be constructed or installed by the City pursuant to the provisions herein shall be used only for the improvement for which the funds are deposited or other improvements satisfying the same purpose.

Any sum payable by the applicant, or his successor in interest, may be levied and collected by the City in the same manner as is provided by law for the levy and collection of real estate taxes.

Refund of excess. If, after the applicant has paid its pro rata share for the improvement, it is determined that the actual cost to install or construct the improvement was lower than anticipated and, as a result, applicant has paid more than its pro rata share, the amount exceeding applicant's actual pro rata share shall be returned to the applicant.

Assessments of properties. After receipt of the applicant's pro rata share of the total cost of the improvement, the City may adopt a local improvement assessment ordinance for the purpose of construction of the improvement based upon the actual cost thereof. The cost of the improvement may be assessed by the City against any property owners who benefit from the improvement. Any assessments made against the applicant, or its successors or assigns, for benefits conferred by the improvement shall be first offset by a credit for the payment made by the applicant as may have been required herein. The applicant, or its successors or assigns, shall not be liable for any part of any assessment imposed hereunder unless the assessment exceeds the credit for payment previously made by the applicant, and then only to the extent of the difference between the amount of the assessment and the payment already made by the applicant.

Successors in interest. In the absence of an express provision in a deed or deeds of conveyance, it shall be presumed that the fee owners of all lots in the subdivision or site plan on the date any deposit or portion thereof is returned or additional charge is made are the lawful successors in interest to the applicant, and each such fee owner shall be charged with or entitled to receive a pro rata share, based on lot area, or any funds to be returned or additional charge to be made pursuant to this section. Upon payment of all such sums to said fee owners, the City shall be released of liability to any other person, including but not limited to the applicant.

Compliance with design criteria. If the applicant is responsible for the construction of an improvement, applicant shall observe all requirements and principles of those section(s) of the City's ordinance and/or building code addressing the design of such improvements.

Standards shall not be changed except under certain circumstances. The standards by which the Approving Authority shall determine the applicant's pro rata share of the improvement shall not be altered for that applicant subsequent to preliminary approval, unless, between the time of preliminary approval and final application, the proposed project is so significantly altered that a change in the determining factor of the applicant's pro rata share is required and a new calculation of the applicant's pro rata share is necessary.

Improvement to be based upon Master Plan. The capacity and design of the improvement shall be consistent with the circulation plan element and/or utility service plan element of the Master Plan. Costs shall be reasonably related to the added growth attributable to the proposed project, and the maximum amount which any applicant may be charged shall not exceed the applicant's pro rata share of the total cost of the improvement.

Submission of as-built plans required; condition of certification of occupancy. Prior to the issuance of a certificate of occupancy, whether temporary or final, an applicant shall submit to the City Engineer five sets of as-built drawings (including one Mylar) of the project for which site plan approval was granted, signed and sealed by a licensed engineer. The City Engineer shall review the submitted drawings and determine whether or not all conditions of site plan approval have been met. No certificate of occupancy will be issued until the City Engineer has determined that all conditions of approval have been met.

Developers agreement; recordation. Where an applicant is required to construct or contribute funds to the construction of an improvement, the applicant shall enter into a developer's agreement with the governing body and the Approving Authority, which shall indicate the applicant's pro rata share of improvement costs. The developer's agreement shall also include a provision for credit or partial reimbursement to the applicant if the improvement constructed by the applicant and said improvement specifically benefits any property other than that of the applicant, except that the applicant's right to reimbursement from owners of any other property that has benefitted from the improvement shall terminate after 20 years from: (x) the date of certification of actual costs for Improvement by the City Engineer; or (y) if the applicant's pro rata share shall have been determined on a phase-by-phase basis, then 20 years from the certification of actual costs by the City Engineer as to each phase. The applicant shall record the developer's agreement, at its own expense, with the Bergen County Clerk and shall file a copy of the recorded developer's agreement with the City Clerk.

Failure to pay pro rata share. Should an applicant fail to pay its pro rata share of the cost of an improvement as determined in this article, the amount due shall be deemed a municipal charge and debt collectible in the same way and manner as real property taxes in the State of New Jersey. The City Clerk shall certify the amount due to the Tax Collector, who shall record the same as a lien against the real property of the delinquent party. Payment, in full, of the amount of such lien shall be a condition of approval of any land use development application by such delinquent party or in which such delinquent party has an interest, and shall be a condition precedent to issuance of any construction permits, certificates of occupancy or other permits or approvals to such delinquent party, directly or indirectly. If a delinquent party already has commenced construction, then nonpayment of the delinquent party's pro rata share or any portion thereof shall be grounds for the City to stop such construction until the amount due and any accumulated interest assessed thereon shall have been paid in full.

Performance and maintenance guaranties. Where a performance or maintenance guaranty or other surety is required in connection with an improvement, the applicant shall be required to follow the appropriate procedure and requirements as specified in the City's respective or applicable ordinance(s).

Severability. If any part of this article is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the article.