AGREEMENT
THIS AGREEMENT, made and entered into at Cleveland, Ohio, this day of , , by and between the City of Broadview Heights, an Ohio municipal corporation, hereinafter referred to “CITY,” and a , hereinafter referred to as “DEVELOPER,” and , hereinafter referred to as “BANK.”
W I T N E S S E T H
WHEREAS, the plat of the Subdivision, hereinafter referred to as “Subdivision,” has been previously presented to the Council of the CITY for approval; and
WHEREAS, Sections 1244.06(G) and 1248.13(A) and (B) of the Code of Ordinances of Broadview Heights require a guarantee of completion of all improvements prior to the recording of a plat for record purposes; and
WHEREAS, the DEVELOPER desires to install these required improvements and has presented its improvement plan to the CITY, a copy of which is attached hereto and marked Exhibit “A”; and
(A) (Performance Guarantee with Installation) WHEREAS, the DEVELOPER has furnished to the CITY a non-interest earning cash deposit in the amount of 20% of the engineer’s estimated construction cost in the amount of ( ) for the improvement of the Subdivision, and the DEVELOPER has set aside funds in an irrevocable letter of credit from the BANK confirming that the DEVELOPER has, on deposit, funds in an amount not less than 110% of the engineer’s estimated cost of construction contained in the amount of ( ) for the improvement of the Subdivision, which funds the BANK has the authority to expend on behalf of the DEVELOPER;
(B) (Performance Guarantee in Lieu of Installation)
WHEREAS, the DEVELOPER has set aside funds contained in Account No. with the in the amount of ( ) for the improvement of the Subdivision, which funds the BANK has the authority to expend on behalf of the DEVELOPER;
NOW, THEREFORE, in partial consideration of CITY approval of the DEVELOPER’S project and to facilitate conformance with applicable laws, the CITY, BANK and DEVELOPER hereby mutually promise and agree as follows:
1. The DEVELOPER promises and agrees that on or before the expiration of one (1) year from the date hereof, it will construct and install, within the areas shown and described on Exhibit “A” hereof, at its sole expense, and without any cost, expense or liability whatsoever to the CITY, the improvements delineated on Exhibit “A” hereof, including, but not limited to, the storm sewer lines, storm drainage swales, storm water storage and detention facilities, sanitary sewers, water mains, pavement and appurtenances incident thereto. The DEVELOPER shall submit his or her proposed construction schedule, for the project to the CITY after final approval of his or her plans has been granted by the Engineer and at least seven days prior to the mandatory preconstruction meeting. Once begun, work shall continue without interruption and the Contractor shall not suspend work or abandon the site without the written approval of the Engineer and Council. Said schedule shall establish a completion date for all work and failure to maintain the scheduled progress shall be cause for action under Section 3(B)(4) of this document. The DEVELOPER shall also clear and grade all land in accordance with the plans and specifications approved by the Engineer of the CITY and as contained in said Exhibit “A” attached hereto and in accordance with the ordinances, regulations and specifications of the CITY. The DEVELOPER agrees to discharge all liabilities in connection with the installation of the above-mentioned improvements.
2. The DEVELOPER further agrees, pursuant to Section 1248.14 of the Code of Ordinances of Broadview Heights, Ohio and paragraph 4 of the Agreement, verification of substantial completion upon completion and by the Engineer of the CITY, the DEVELOPER shall maintain and keep said improvements in good repair and free from defects for a period of a minimum of two years following the completion, verification and acceptance of the installation of the improvements by the City Engineer. At the end of said two years or after all required repairs of defects are completed, whichever is later the DEVELOPER shall have the opportunity to petition City Council to accept said DEVELOPMENT to public maintenance. The DEVELOPER agrees to pay a storm sewer maintenance fee of one hundred dollars ($100.00) per acre prior to the commencement of the project. (The amount of one hundred dollars ($100.00) shall be the fee for the 2006 calendar year and continue to increase 3% over the prior year every subsequent year thereafter.) Said fees shall be placed in a fund to be used for the ongoing maintenance of storm sewers in developments in the CITY. No part of such fund or fee shall be available to or used by the DEVELOPER to clean and/or correct any defects in improvements (as further delineated in paragraph 6 herein) for purposes of passing the inspection required for dedication, and such cleaning and repair shall be at the DEVELOPER’S sole cost. Said fee shall be calculated by the Finance Department based upon information obtained and submitted by the DEVELOPER indicating the number of lots in the development and verified by the City Engineer.
3. The DEVELOPER has agreed to (A) Performance Guarantee with Installation or (B) Performance Guarantee in Lieu of Installation such funds shall be placed in the name of the CITY subject only to the terms of this escrow agreement.
(A) The BANK and the DEVELOPER agree that disbursement of the aforesaid funds shall be made to the DEVELOPER as follows:
(1) Upon receipt of the following items:
(a) The certificate of the City Engineer that all improvements have been installed in accordance with the requirements of the Subdivision Regulations of the CITY and the actions of the Planning Commission;
(b) Evidence of receipt by the CITY of a deposit securing the maintenance and repair of the improvements for a time period as determined pursuant to Section 1248.14 of the Code of Ordinances of Broadview Heights;
(c) A policy of title insurance in a form meeting the approval of the Law Director covering all lands (exclusive of improvements) to be dedicated to public use and showing title to the
same to be in the CITY free and clear of any easements, taxes, liens, assessments or other encumbrances of any kind whatsoever, except the easements required by the Subdivision Regulations of the CITY and taxes not yet due and payable, or a certificate from the City Engineer acknowledging receipt of same; and
(d) Evidence of deposit by the DEVELOPER with the CITY of a sum sufficient to pay all taxes and assessments which are a lien but not yet due and payable.
(2) Upon receipt of certification by the City Engineer of the satisfactory completion of a portion of the aforesaid improvements and upon a determination by the CITY that all remaining uncompleted improvements are adequately secured, the BANK may release a portion of the funds deposited equal to an amount estimated by the City Engineer to be the cost of that portion of the improvements completed, or the difference between the total sum determined by the CITY to be necessary to secure the completion of all remaining uncompleted improvements and all other obligations of the DEVELOPER under this Agreement, whichever may be less.
(B) The BANK is authorized to deliver or disburse to the CITY all or any part of the funds as determined by the City Engineer, plus any additional funds including interest earned on the aforesaid sums, less any and all fees or penalties due arising from the deposit or investment, upon the BANK being notified by the CITY of the occurrence of one or more of the following events:
(1) If the DEVELOPER assigns this Agreement, or any interest therein to any person, firm or corporation, or gives to any person, firm or corporation any order or orders thereon;
(2) If the required improvements shall violate building, subdivision or zoning laws of the CITY;
(3) If the land within the development area as identified on the subdivision plat as approved for record purposes is used for any unlawful purpose or is occupied for other than dwelling purposes or for any purpose without the approval of the appropriate administrative official, board or commission of the CITY;
(4) If the improvements are not fully constructed by the established completion date(s) or by any extension date approved by Council;
(5) If the improvements, in the judgment of the City Engineer are materially injured or destroyed prior to acceptance by the CITY, and no insurance or other provision acceptable to the CITY is made for prompt replacement or repair of the same at no cost to the CITY;
(6) If the DEVELOPER does not construct the improvements in accordance with plans and specifications that have been approved by the proper CITY authorities having charge thereof;
(7) If the DEVELOPER does not permit the CITY or its authorized agents or employees to enter upon and inspect the same, in every part at all reasonable times;
(8) If the DEVELOPER shall commit an act of bankruptcy, or if any relief under the Bankruptcy Act is sought by or against the DEVELOPER, or if a receiver is appointed to take charge of the assets or affairs of the DEVELOPER, or if the DEVELOPER and/or a lender should become insolvent.
Prior to the delivery or disbursal under this paragraph 3(B), the CITY shall provide written notice to the DEVELOPER, by personal service or certified mail, of the grounds therefor, and shall establish and notify the DEVELOPER of a time period within which the DEVELOPER shall be afforded an opportunity to correct or cure the circumstances giving rise thereto. Such time period for correction or cure shall be no less than forty-five (45) days from the date of said notice, unless the City Engineer determines that immediate work is required to protect the public health, safety and welfare, in which case such time period shall be as established by the City Engineer.
4. The DEVELOPER further agrees that, as a condition of and prior to the acceptance by the CITY of the dedication to public use of the streets and roads contained in the Subdivision, it will furnish to the CITY a cash bond or maintenance bond in an amount equal to ten percent (10%) of the costs of the roadway improvements hereunder, and guarantee that the materials and the improvements are free from defects for a period of two (2) years following the acceptance of dedication by City Council. The City Engineer will
provide a letter of substantial completion and verification of all appurtenances. The acceptance period shall always be limited to May 1 through October 31. In case of phased development, an additional bond, in an amount to be determined by the City Engineer on a case-by-case basis, shall be included to cover road damage to completed phases.
5. The DEVELOPER further agrees that during the period prior to city council’s acceptance, it shall, at its sole expense, repair all faults and defects of every kind and nature, whether arising out of defects in workmanship or defective materials.
6. In addition to the bond required in paragraph 4 above, at the time the DEVELOPER desires to obtain approval and acceptance by the CITY of the aforesaid improvements, the DEVELOPER agrees that it will, as a condition precedent to the said acceptance by the CITY, provide the CITY with certificates or other writings from the City Engineer, certifying that all storm sewer lines, streets, street connections, and all appurtenances thereto, have been properly installed in accordance with the aforementioned plans and specifications and that the construction and installation thereof have been duly completed, inspected and approved by each of the hereinbefore mentioned respective entities.
7. The DEVELOPER, simultaneously with the execution of the Agreement, shall deposit with the Finance Director of the CITY the sum of ( ) to defray the cost of legal services in implementing and monitoring this Agreement and the project thereunder, as well as requisite engineering and inspection fees and other costs and expenses incurred by the CITY, and the Finance Director is hereby authorized and directed to disburse said sum to the Law Director, the City Engineer and/or other authorized legal and technical consultants upon proper billing to the CITY for said services. The DEVELOPER acknowledges that the foregoing sum is based upon an estimate and that, in the event said sum is insufficient to fully pay all of the aforementioned expenses of the CITY, it shall deposit such additional sums as may be required upon the request of the Finance Director of the CITY. The Finance Director shall account to the DEVELOPER for any payments made pursuant to this paragraph.
8. The DEVELOPER agrees that, simultaneously with the execution of this Agreement and before any work hereunder is commenced, it will submit evidence to the satisfaction of the Law Director of the CITY that it, or its contractors, have obtained public liability and property damage insurance covering and insuring the CITY, as its interests may appear, against any liability whatsoever, in the amount of two hundred thousand dollars ($200,000) for injury or death to any one person, with a minimum aggregate limit of one million dollars ($1,000,000), and three hundred thousand dollars ($300,000) for property damage, which insurance shall be furnished and maintained at the expense of the DEVELOPER until all the work agreed to be done by the DEVELOPER has been fully completed and accepted, including the maintenance of the aforementioned improvements agreed by the DEVELOPER to be maintained. The DEVELOPER may provide such insurance under a blanket-type policy, provided the CITY is properly named as an insured thereunder, in accordance with the provisions of the Agreement. The DEVELOPER shall be liable for any damage, whether direct or indirect, to any underground or above-ground utilities in the aforementioned Subdivision and further agrees to comply, both singularly and on behalf of the CITY, with the provisions contained in Section 153.64 of the Ohio Revised Code, and any amendments made thereto, to the extent said section shall be applicable.
9. The DEVELOPER agrees to comply with the State law known as the Workers’ Compensation Act, and any amendments made thereto, and to cause to be covered thereunder all employees working under the control of the DEVELOPER or its agents, and the DEVELOPER agrees to defend, indemnify and hold harmless the CITY and its officers, agents and employees from all claims, demands, payments, loss and expenses, including attorney fees, suits, actions, recoveries and judgments of every kind and description, whether or not well founded in law, made, brought or recovered against it, arising from any cause whatever or for any reason whatever connected with the performance of this Agreement by the DEVELOPER or its agents, contractors, subcontractors or employees, including any of the foregoing arising in consequence of insufficient protection or of the use of any patented invention by said DEVELOPER or its agents, contractors, subcontractors or employees.
10. The DEVELOPER agrees that the performance of this Agreement by it shall be solely at its expense and cost and at no expense or cost to, or liability or obligation of, the CITY.
11. The DEVELOPER agrees to deliver to the CITY a Title Guarantee in the fair market value, as determined by the City Engineer, showing title to private property conveyed to the CITY by easement, if any, to be vested in the CITY free and clear of all liens and encumbrances.
12. This Agreement shall be binding upon any successors in interest, assignees, heirs, executors, administrators or trustees of the DEVELOPER, and the DEVELOPER agrees that, prior to any voluntary or involuntary assignment of this Agreement, it will obtain a written statement forwarded to the CITY acknowledging the obligation of any successor in interest to comply with the terms of this Agreement.
13. By executing this Agreement, the BANK agrees to faithfully discharge the escrow provisions contained herein.
IN WITNESS WHEREOF, the parties hereto have affixed their signatures upon this Agreement as duly authorized agents, warranting that they are empowered to bind their respective parties, on the date first written above.
WITNESSES:
AS TO CITY: CITY OF BROADVIEW HEIGHTS, OHIO
By:
MAYOR
APPROVED AS TO FORM:
LAW DIRECTOR
AS TO DEVELOPER:
By:
NAME TITLE
DEVELOPER
MAILING ADDRESS
CITY STATE ZIP
AS TO BANK:
By:
NAME TITLE
DEVELOPER
MAILING ADDRESS
CITY STATE ZIP
(Ord. 15-06, passed 2-6-2006; Ord. 103-06, passed 7-17-2006; Ord. 128-07, passed 11-19-2007; Ord. 04-16, passed 3-7-2016; Ord. 35-2021, passed 6-21-2021)