THIS AGREEMENT is made this _____ day of ________________, 20___, by and between the McCracken County Fiscal Court (“County”), with a principal mailing address of 300 South 7th Street, Paducah, Kentucky 42003; and (name and mailing address of developer) (“Developer”) and (name and mailing address of Owner) (“Owner”).
RECITALS
A. The Owner is the owner of real property located in McCracken County legally described as set forth in Exhibit A attached hereto and incorporated by reference herein (“Property”).
B. The Owner and the Developer have applied for approval of a final plat of subdivision of the Property to be known as _______________________________________ (“Subdivision”).
C. The Developer has submitted to the County for its approval the engineering plans and specifications for the public improvements consisting of storm water retention basins and the grading, drainage, curbing and paving for the publicly used street system, (“Public Improvements”) for the Subdivision prepared by __________________________________________ dated _____________________ last revised _____________________________ (“Plans”) and the County has accepted the Plans.
D. The County is willing to accept the Plan only upon the condition that the Owner and the Developer agree to cause the Public Improvements for the Subdivision to be installed and completed in a good and workmanlike manner with materials of good quality in strict accordance with the Plans, County specifications and the County Subdivision Regulations, fully paid for and maintained by the Developer as determined by the County Engineer.
NOW THEREFORE, in consideration of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is expressly acknowledged, it is agreed by and among the parties as follows:
1. The County agrees to accept the final Plan provided that the Developer satisfy all conditions precedent to such acceptance as set forth in the McCracken County Subdivision Regulations and the county road specifications.
2. The Owner and Developer jointly and severally promise and agree as follows:
A. To construct the Public Improvements, or cause them to be constructed, in a good and workmanlike manner with materials of good quality acceptable to the County Engineer and in strict accordance with the Plans and the McCracken County Subdivision Regulations and to complete phases _____ (A), _____ (B), _____ (C), _____ (D) of construction set forth in paragraph three (3) below on or before the completion dates therein specified and completion of all Public Improvements, and
B. To pay to the contractors and material suppliers who furnish labor or materials, or both for the construction of the Public Improvements the full amounts due them for such labor and materials, and
C. To maintain the Public Improvements for the full duration of the project up to the final completion date as set forth in paragraph three (3) below. The Developer’s maintenance obligations shall include, but are not limited to:
I. Maintaining the Public Improvements;
II. Repairing any damage to the Public Improvements caused by the Developer, its agents, servants, employees or its successors and assigns, or by any contractor hired by the Developer, its agents, servants, employees, successors or assigns, or any subcontractor hired by such contractor; and
III. Repairing or replacing any defective workmanship or materials in the Public Improvements, and
3. Completion Dates: The Public Improvements shall be completed in accordance with the following schedule as time is of the essence:
A. Curb and gutter roadways or non-curb and gutter roadways site grading, including grading and drainage of streets, detention and retention ponds shall be completed on or before ______________________________.
B. Curb and street base, including “first lift” of pavement, shall be completed on or before ___________________________.
C. Curb and gutter roadways final street surface (“second lift”), including necessary repairs to street base, (“first lift”), catch basins, manholes and other structures located between curb lines shall be completed on or before ______________________________.
D. Non-curb and gutter roadways, complete grading of ditch sections, proper installation and maintenance of pipe drainage structures, street aggregate base, (“first lift”) of pavement base and final street surface (“second lift”) including necessary repairs to the aggregate base and (“first lift”) of pavement shall be completed on or before ___________________________.
4. The Owner and Developer further agree to cause to be maintained at all times proper security to guarantee the completion of payment for and maintenance of the Public Improvements as required by the McCracken County Subdivision Regulations in the form of either (1) an irrevocable standby letter of credit; (2) a self-funded bond guarantee; or (3) a performance/warranty surety bond. In the event said letter of credit nears its expiration date and is not renewed, the County may collect on the same.
5. The failure of the County to insist upon the strict and prompt performance of the obligations herein contained shall not constitute or be construed as a waiver or relinquishment of the County’s rights thereafter to enforce such obligation, but the same shall continue in full force and effect. If the performance of any obligation to be performed under this Agreement by the Owner/Developer is delayed as a result of circumstances which are beyond the reasonable control of the Owner/Developer (which circumstances may include acts of God, war, acts of civil disobedience, strikes or similar acts), the time for such performance shall be extended by the amount of time of such delay.
6. This Agreement shall be binding upon and inure to the benefit of the Parties, their successors and assigns.
7. Venue, Attorney’s Fees: The parties agree that the proper venue for the enforcement of this Agreement shall be the McCracken County Circuit Court. The Developer and Owner, jointly and severally agree to reimburse the County for any reasonable attorney’s fees and court costs incurred by the County in enforcing or attempting to enforce the obligations of the Developer and the Owner, regardless of whether a lawsuit is actually filed, within 30 days after the receipt of copies of paid invoices for such attorney’s fees and court costs.
IN WITNESS HEREOF AND BY AFFIXING THE SIGNATURES OF THEIR AUTHORIZED AGENTS BELOW, THE PARTIES HEREBY ACKNOWLEDGE AND CERTIFY THAT THE TERMS AND CONDITIONS SET FORTH HEREIN WERE AGREED UPON BY THE PARTIES IN THE COURSE OF GOOD FAITH NEGOTIATIONS CONDUCTED AT ARMS LENGTH. SAID SIGNATURES FURTHER ACKNOWLEDGE AND CERTIFY THAT THE PARTIES HAVE BEEN GIVEN ADEQUATE TIME TO READ, REVIEW AND SEEK CLARIFICATION FROM LEGAL COUNSEL PERTAINING TO ALL RIGHTS AND DUTIES SET FORTH HEREIN AND NOW FULLY UNDERSTAND ALL SUCH RIGHTS AND DUTIES AND INTEND TO BE BOUND BY THE SAME.
MCCRACKEN COUNTY FISCAL COURT
_____________________________________
McCracken County Judge/Executive
NOTARY SEAL
STATE OF KENTUCKY
COUNTY OF MCCRACKEN
I certify the following was duly sworn before me on the _____ day of _________________, 20___.
_____________________________________
Notary Public
My commission expires: ________________
DEVELOPER
By:__________________________________
Title:_________________________________
NOTARY SEAL
STATE OF KENTUCKY
COUNTY OF MCCRACKEN
I certify the following was duly sworn before me on the ______ day of ________________, 20___.
_____________________________________
Notary Public
My commission expires: _________________
(Ord. passed 11-27-2017)