THIS AGREEMENT, made pursuant to the provisions of Ohio Revised Code Chapter 711, Brunswick Code Part 12
and Brunswick City Ordinance No. 27-82, by and between the CITY OF BRUNSWICK, an Ohio Municipal Corporation hereinafter referred to as the "City," and , hereinafter referred to as the "Developer," the City and the Developer being sometimes hereinafter collectively referred to as the "Parties."
WITNESSETH:
WHEREAS, the Developer is the owner of certain real property located within the City of Brunswick which the Developer plans to subdivide and develop as a subdivision;
WHEREAS, the City of Brunswick, the Brunswick City Council and/or the Brunswick City Planning Commission has been delegated authority pursuant to the applicable provi sions of the Ohio Revised Code and the Brunswick City Code to direct and control the plat ting of property located within the City of Brunswick or under the jurisdiction of the City of Brunswick;
WHEREAS, in accord with the aforesaid authority the City of Brunswick has promulgated regulations and requirements governing the method and the manner in which streets, public ways, water mains, sanitary sewers, storm sewers, utility mains and other facilities to be located in a subdivision shall be installed, constructed and improved;
WHEREAS, the Developer has received the approval of the Brunswick City Planning Commission of its preliminary plat for a subdivision to be located within the City of Bruns wick or under the jurisdiction of the City of Brunswick and;
WHEREAS, the City of Brunswick desires to insure the complete and proper construction and installation of all streets, public ways, water mains, sanitary sewers, storm sewers, utility mains and other facilities to be installed in the subdivision;
NOW THEREFORE, in consideration of the foregoing premises and in consideration of the promises, covenants, obligations and undertakings hereinafter set forth, the Parties agree as follows:
1. DEFINITIONS:
It is agreed between the City and the Developer that the following definitions shall apply to and control the construction and interpretation of this Construction Agreement:
(a) "Preliminary subdivision plat or plan" means the real estate plat for the _____________ Subdivision that has been attached hereto as Exhibit "A."
(b) " _________________Subdivision, Phase _____ " means all the real estate contained in or reflected by the subject tract and the subdivision plat, together with all subdivision improvements specified in the subdivision plat or plan, the conditional zoning certificate and the subdivision construction drawings.
(c) "Conditional zoning certificate" means that conditional zoning certificate which is attached hereto as Exhibit "B," if a conditional zoning certificate is applicable or exists.
(d) "Subdivision construction drawings" means that set of final prints and drawings, as may be approved by the City Engineer, the County Sanitary Engineer and/or the Cleveland City Water Department, which contain construction specifications governing the manner and method of installing the roads, streets, rights of way (if applicable), storm sewers, sanitary sewers, water mains, utility mains and recreational facilities to be installed in the Subdivision, Phase ____. Such subdivision drawings are attached hereto as Exhibit "C."
(e) "Subdivision improvements" means and includes all streets, roads, rights of way (if applicable), sidewalks, public sidewalks, guardrails, bridges, conduits, culverts, ditches, storm sewers, sanitary sewers, water mains, waterlines, utility mains (whether gas, electric or telephone), parks, recreation facilities and recreation areas, together with all other improvements and facilities that are named, specified or referred to in the subdivision construction drawings.
(f) "Storm sewer" means any ditch, culvert, pipe, conduit, waterway, stream, watercourse, river or other device existing or designed to contain or control the flow of all types of surface and drainage water.
(g) "City Engineer" means the duly appointed Brunswick City Engineer.
(h) "Service Director" means the duly appointed Brunswick Director of Public Service.
(i) "City Law Director" means the duly appointed Brunswick City Law Director.
(j) "City Manager" means the duly appointed Brunswick City Manager.
(k) "County Engineer" means the duly elected Medina County Engineer.
(l) "County Sanitary Engineer" means the duly appointed Medina County Sanitary Engineer.
2. SUBDIVISION IMPROVEMENTS:
The Developer shall, at its own cost and expense, install or cause to be installed, in the subdivision, all subdivision improvements specified in the subdivision construction drawings.
All subdivision improvements shall be constructed, installed and completed in accordance with the specifications and requirements set forth in the subdivision construction drawings.
The Developer shall complete construction and subdivision improvements within twenty-four months from the date of approval of the final plat, as specified in Section 1224.04(e)(3) of the Codified Ordinances of the City.
3. CONSULTING ENGINEER:
The Developer shall, at its own cost and expense, engage the services of a duly accredited and qualified civil engineer, registered in the State, to act as a consulting engineer during the course of construction and installation of the subdivision improvements, shall be approved by the City Engineer.
The consulting engineer shall be physically present at the Subdivision, Phase _____ and job site at all times as may be required by the City Engineer during construction and installation of all subdivision improvements. The consulting engineer shall supervise and monitor the construction and installation of all subdivision improvements to ensure that the improvements are constructed as detailed on the approved subdivision construction drawings.
The consulting engineer shall, upon completion of all subdivision improvements, certify, in writing, to the City Engineer that all subdivision improvements were properly constructed and installed in accordance with the specifications and requirements set forth in the subdivision construction drawings. It is further agreed that the City is not obligated to provide a final inspection for the subdivision improvements, nor is the City Engineer required to provide written acknowledgment that the subdivision improvements have passed final inspection, until receipt of such written certification of the consulting engineer and a set of “as-built” drawings.
The consulting engineer shall file, with the City Engineer, a set of reproducible drawings on reproduction media such as mylar, showing the project "as-built." Such drawings shall allow the City Engineer to produce prints for distribution.
The consulting engineer may modify the provisions of the construction drawings as may be necessary and proper to ensure proper construction of the subdivision improvements, provided that the written approval of the City Engineer is first obtained.
4. GRADE BONDS AND SIDEWALKS:
Notwithstanding the various terms of this Construction Agreement, the Developer shall perform all obligations and requirements pertaining to grade bonds as are set forth in Section 1512.02 of the Regional Dwelling House Code, as amended in Chapter 1420
of the Codified Ordinances of the City.
It is specifically agreed that the City is not obligated to provide final acceptance of subdivision improvements until all sidewalks are installed or adequate security (as deemed appropriate by the City Law Director at his or her sole discretion) for the installation of sidewalks is provided to the City by the Developer.
5. SECURITY FOR PERFORMANCE:
As and for security for the Developer's performance and completion of the obligations set forth in Paragraph 2 of this Construction Agreement, the Developer shall, upon the execution of this Construction Agreement, provide the City with a financial guarantee and a disbursement agreement issued and executed by a commercial lending institution. The commercial lending institution shall be approved and accepted by the City Manager. The financial guarantee and disbursement agreement shall be in a form and shall contain such terms and provisions deemed necessary by the Law Director to ensure the Developer's faithful performance and completion of the obligations of the Developer as set forth in Paragraph 2 of this Construction Agreement. The financial guarantee and disbursement agreement shall contain an unconditional certification by the commercial lending institution that funds sufficient to complete all the Developer's obligations, as set forth in Paragraph 2 of this Construction Agreement, are available, unconditionally and irrevocably to the Developer, at or before the time of completion of such obligations. The financial guarantee and disbursement agreement shall also provide that no funds or part thereof certified to be available shall be released, except upon the commercial lending institution's receipt of a written authorization to release such funds, which authorization shall specify the amount of funds to be released and the party to whom such funds may be released and which authorization shall be approved and executed by the City Engineer.
As construction and installation of the subdivision improvements progress, the City Engineer shall, from time to time, authorize the commercial lending institution to make partial disbursements of such funds in an amount equal to ninety percent of the percentage of job completion multiplied by the amount of the total fund. The City Engineer is the sole determiner of the percentage of job completion of subdivision improvements at any given point in time.
Notwithstanding any of the terms of this paragraph, the commercial lending institu tion shall retain ten percent of the total fund until the Developer requests the final inspection required by Section 1230.03(b)(3) of the Codified Ordinances of the City, and until the City Engineer, the Cleveland City Water Department, the County Engineer and the County Sanitary Engineer provide written acknowledgment that the subdivision improvements have passed final inspection and are unconditionally accepted by the City of Brunswick, the City of Cleveland and Medina County.
It is specifically agreed that the Developer's obligation to completely and correctly construct and install the subdivision improvements is not limited to the amount of the fund or to the time period for which the bond is in effect.
In lieu of the provisions and obligations respecting the financial guarantee and disbursement agreement as security performance, the Developer may provide any other reasonable form of security for performance which may be accepted and approved in writing by the City Manager and the City Law Director.
It is specifically agreed that the Developer's obligation to completely and correctly install the subdivision improvements is contractual in nature and that the statute of limi tations governing contracts is applicable. By execution of this Construction Agreement, the Developer hereby assigns, transfers and subrogates to the City any contractual rights that it may have against its subcontractors, subtrades, agents, employees or independent contractors for incomplete or incorrect installation of any of the subdivision improvements.
6. MAINTENANCE BOND:
The Developer shall, prior to requesting the final inspection referred to in Paragraph 5 of this Construction Agreement, provide a maintenance bond by a bonding company licensed to provide insurance and bonds in the State, in the amount specified in this paragraph by the City Engineer, for a period of two years from the date of unconditional ac ceptance of the subdivision improvements by the City. The maintenance bond shall be in an amount equal to ten percent of the total cost of all subdivision improvements, except the costs attributable to the installation of sanitary sewers. (The Developer acknowledges that Medina County may require a separate bond for sanitary sewers and agrees to provide the same. If such bonds are provided to Medina County, the cost of such improvements shall not be included when determining the amount of the maintenance bond otherwise required by this paragraph to be provided to the City.) It is specifically agreed that the City may require the Developer itself to post such bond and that the City is not obligated to accept bonds tendered by the Developer's subcontractors, subtrades or any other person or firm whatsoever.
During the period that the maintenance bond is in effect, the Developer shall, at its own cost and expense, maintain all subdivision improvements as may be necessary to re store the subdivision improvements to their original state of good repair and condition.
If it is necessary to repair or provide other maintenance services in order to maintain the subdivision improvements in their original state of good repair, the City shall provide written notice of that fact to the Developer.
If the Developer fails to maintain and keep the subdivision improvements in a state
of good repair during the period of the maintenance bond, the City may engage the services of other firms or contractors to maintain, repair, correct or restore the subdivision improvements to their original state of good repair. If the City incurs expenses during the course of engaging the services of other firms or contractors to complete, maintain, correct or restore the subdivision improvements to their original state of good repair, the City may order forfeiture of the maintenance bond, or any part thereof, in an amount that it deems necessary to defray and reimburse the costs of maintaining or repairing the subdivision improvements. If the forfeited maintenance bond or any part thereof is insufficient to defray and reimburse the City's costs in completing the maintenance and repair of the subdivision improvements, the Developer shall pay the City any additional amount expended by the City in carrying out the Developer's obligations under this Construction Agreement.
7. COMMENCEMENT OF CONSTRUCTION:
The Developer may begin construction of buildings on those lots or in those areas
specifically designated by the City Engineer prior to the time that the City or Medina County accepts the subdivision improvements pursuant to the provisions of Paragraph 2 of this Construction Agreement, provided that the City Engineer, in his or her sole opinion, determines that such lots or areas are properly serviced by those subdivision improvements deemed necessary by the City Engineer and provided, further, that the City Engineer has furnished the Developer with written evidence of such determination prior to the commencement of construction.
8. INSPECTION SERVICES:
A City Inspector shall be present at the subdivision site during the installation of all plan improvements. The Developer agrees to reimburse the City for incurred costs for inspection work.
9. DEFAULT:
It is expressly agreed between the Parties that the relations and obligations created by this Construction Agreement are contractual in nature, thereby entitling the Parties, in the event of breach of the terms of this Construction Agreement, to any and all relief afforded in law and in equity by the laws of the State regarding contracts.
10. LIABILITY AND INSURANCE:
The Developer shall indemnify and save harmless the City against and from any and all claims, costs and expenses for injury to persons or damage to property, including the cost of investigation and litigation, which may be brought against the City, proximately caused or claimed to have been caused by any act or omission of the Developer, its agents, independent contractors or employees and arising out of, or claimed to have arisen out of, any activity connected with the construction and installation of the subdivision improvements, the maintenance of subdivision improvements or the failure to maintain the subdivision improvements as required by the terms of this Construction Agreement.
As security for the performance of the obligations set forth in this paragraph, the Developer shall provide and maintain, at its own expense, with insurers and under policies and with cancellation notice endorsements satisfactory to the City Law Director, public liability insurance with limits of not less than one million dollars ($1,000,000) with respect to bodily injury or death of any one person, not less than two million dollars ($2,000,000) with respect to bodily injury or death in any one accident and not less than five hundred thousand dollars ($500,000) with respect to property damage. Such insurance shall indemnify and save harmless the City from any and all liability incurred by reason of any condition of the subdivision improvements, or by reason of any act that occurs during the course of the construction, installation and maintenance of the subdivision improvements. Such liability insurance shall name the City as an additional insured and shall contain a provision or endorsement which waives the insurer's rights of subrogation against the City. Such policy of liability insurance shall also contain a provision that the insurance cannot be canceled without at least ten days prior written notice to the City of such intended cancellation. Such policy of liability insurance or the insurer's certificates evidencing such insurance shall be delivered to the City at the time of the execution of this Construction Agreement. The policy of insurance shall in no event be allowed to expire earlier than the date of the expiration of the maintenance bond as set forth in Paragraph 6 of this Construction Agreement.
The Developer shall also, at its own cost and expense, provide a title guarantee and title insurance, in an amount of not less than two hundred thousand dollars ($200,000), which shows and guarantees good, marketable title in the name of the City to all lands, rights of way and easements to be dedicated to the City and to all lands, rights of way or easements the benefit of which may or shall inure to the benefit of the City as is shown on the subdivision construction drawings. The policy of title insurance shall be in such form and shall contain such provisions as the City Law Director may require, and such policy of title insurance shall be delivered to the City at the time of the execution of this Construction Agreement.
11. REPRESENTATIONS OF DEVELOPER:
The Developer represents and warrants that it is either:
(a) A Corporation duly organized, validly existing and in good standing under the laws of the State and that it has all of the requisite power and authority to enter into this Construction Agreement. This Construction Agreement, the consummation of the transactions herein contemplated and the performance, observance and fulfillment by the Developer of all of the terms and conditions of this Construction Agreement on its part to be performed, observed and fulfilled, have been approved and authorized by the Board of Directors of the Developer and by the Shareholders of the Developer in accordance with the Developer's Articles of Incorporation, Code of Regulations and Ohio law. This Construction Agreement has been duly and validly executed and delivered by the Developer and constitutes the valid, binding and enforceable obligation of the Developer. The Developer has the right, power, legal capacity and authority to enter into and perform its obligations under this Construction Agreement, and no consent of any third party is necessary with respect thereto. The execution and delivery of this Construction Agreement by the Developer, the consummation of the transactions herein contemplated and the performance, fulfillment and compliance with the terms and conditions of this Construction Agreement by the Developer do not and shall not conflict with any of the provisions of the Developer's Articles of Incorporation or Code of Regulations.
At the time of the execution of this Construction Agreement, the Developer shall pro vide the following documents and items to the City:
(1) A certificate of good standing issued by the Secretary of State, which reflects the fact that the Developer is a corporation in good standing in the State, and such other documents and/or evidence as the City Law Director may require to establish the fact that the Developer is a corporation in good standing in the State, copies of the foregoing certificate of good standing and such other documents and/or evidence being attached hereto as Exhibit "D":
(2) A certified copy of an incumbency certificate with respect to the appropriate officers of the Developer, which reflects the fact that such officers are the duly elected and/or appointed officers of the corporation at the time of the execution of this Construction Agreement, a copy of which is attached hereto as Exhibit "E;"
(3) Certified copies of the proceedings of the Developer's Board of Directors and proceedings of the Developer's Shareholders, which copies reflect the fact that the Developer's Directors and Shareholders have approved the terms and provisions of this Construction Agreement, have authorized the execution of this Construction Agreement by the Developer and have authorized the Developer to consummate the transaction herein specified, copies of such certified copies being attached hereto as Exhibit "F" and "G" respectively; and
(4) A certified copy of the proceedings of the Developer's Board of Directors which reflects the facts that the Developer's officers have been duly authorized by the Developer to execute this Construction Agreement for and on behalf of the Developer, a copy of which is attached hereto as Exhibit "H".
(b) A general and/or limited partnership validly existing and in good standing under the laws of the State and having all of the requisite power and authority to enter into this Construction Agreement.
This Construction Agreement, the consummation of the transactions herein contemplated and the performance, observance and fulfillment by the Developer of all of the terms and conditions of this Construction Agreement on its part to be performed, observed and fulfilled, have been duly approved and authorized by all of the general partners of the Developer. If this Construction Agreement has been duly and validly executed and delivered by the Developer and constitutes a valid, binding and enforceable obligation of the Developer, the Developer has the right, power, legal capacity and authority to enter into and perform its obligations under this Construction Agreement, and no consent of any third party is necessary with respect thereto. The execution and delivery of this Construction Agreement by the Developer, the consummation of the transactions herein contemplated and the performance, fulfillment and compliance with the terms and conditions of this Construction Agreement by the Developer do not and shall not conflict with any of the provisions of the Developer's partnership agreement.
At the time of the execution of this Construction Agreement, the Developer shall provide a certified copy of the proceedings of the Developer's general partners and/or written acknowledgment signed by all of the Developer's general partners which reflects the fact that the partnership has approved the terms of this Construction Agreement by the Developer and has authorized the Developer to consummate the transaction herein specified, copies of such proceedings or acknowledgments attached hereto as Exhibit "I."
The Developer specifically represents and warrants that it will abide by the terms of this Construction Agreement and that it will fully complete all subdivision improvements in accordance therewith.
12. CONTRACTUAL OFFICER OF THE CITY:
The Developer and the City agree that the Service Director shall be and hereby is
deemed the contractual officer for the City with respect to the execution of this Construction Agreement, and that the Director shall have the sole and complete authority to execute this Construction Agreement on behalf of the City without the approval of Council with respect to such execution.
13. FINAL ACCEPTANCE:
After all subdivision improvements in areas in the City have passed the final inspection as specified in Section 1230.03(b)(3) of the Codified Ordinances of the City, and after the Service Director and the City Engineer have determined that the Developer has completely performed all obligations required of the Developer by the terms of this Construction Agreement, the City shall unconditionally accept the subdivision and all subdivision improvements. Final acceptance shall be deemed to have taken place at such time as the City notifies the Developer, in writing, signed by the City Manager, the Service Director and the City Engineer, of the fact that the subdivision and subdivision improvements have passed final inspection and that the Service Director and City Engineer have determined that the Developer has performed all obligations required of it by the provisions of this Construction Agreement.
14. MISCELLANEOUS:
(a) Exhibits. All exhibits to this Construction Agreement constitute an integral part of this Construction Agreement as if fully rewritten herein.
(b) Entire Agreement. This Construction Agreement and the documents attached hereto as exhibits constitute the entire understanding and agreement between the Parties hereto concerning the subject matter hereof. All negotiations between the Parties hereto are merged into this Construction Agreement, and there are no representations, warranties, covenants, understandings or agreements, oral or otherwise, in relation hereto between the Parties other than those incorporated herein or to be delivered hereunder. Nothing expressed or implied in this Construction Agreement is intended to, or shall be construed so as to, grant or confer on any person, firm or corporation, other than the Parties hereto, any rights or privileges hereunder.
(c) Governing Law. This Construction Agreement is to be delivered, and shall be construed, in accordance with and governed by the laws of the State.
(d) Modifications. Except as herein otherwise provided, this Construction Agreement shall not be altered or modified unless such alteration or modification is set forth in writing, signed by the Service Director and the Developer, and no oral or verbal modification shall be sufficient to bind either party to any such purported modification.
(e) Headings. The headings in this Construction Agreement are intended solely for the convenience of reference and shall be given no effect in the construction or interpretation of this Construction Agreement.
(f) Execution in Counterparts. This Construction Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
(g) Precedent. It is specifically agreed that the various terms of this Construction Agreement shall not be considered or construed as a precedent for the terms of any construction agreement between the Developer and the City in the future.
IN WITNESS WHEREOF, the City and the Developer have, by and through their respective authorized agents, hereunto set their hands this day of 200 .
_______________________________
Name
WITNESSED BY:
________________________________________
________________________________________
Name (Printed)
________________________________________
________________________________________
Name (Printed)
STATE OF OHIO )
) ss
MEDINA COUNTY )
Before me, a Notary Public in and for the said County and State, personally appeared who acknowledged that he or she was authorized to execute the foregoing instrument on behalf of , that he or she did sign the foregoing instrument and that the same is his or her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at ____________ ,Ohio, this day of , 200____ .
Notary Public
IN WITNESS WHEREOF, the City of Brunswick has, by and through its respective authorized agent, hereunto set its hands this _______________ day of ________, 200__.
_________________________________
Service Director
For the City of Brunswick
WITNESSED BY:
________________________________________
________________________________________
Name (Printed)
________________________________________
________________________________________
Name (Printed)
STATE OF OHIO )
) ss
MEDINA COUNTY )
Before me, a Notary Public in and for the said County and State, personally appeared the City of Brunswick, by and through _________________, its Service Director, who acknowledged that he was authorized to execute the foregoing instrument on behalf of the City of Brunswick, that he did sign the foregoing instrument and that the same is his free act and deed as Service Director for the City of Brunswick.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at ___________, Ohio, this _______ Day of ____________, 2000___.
__________________________
Notary Public
ACCEPTABLE TO:
__________________________
City Manager
__________________________
Director of Law
__________________________
City Engineer
(Ord. 166-82. Passed 11-22-82. Ord. 8-03. Passed 2-10-03.)