The Mayor and Clerk/Treasurer are authorized to enter into a Developer’s Agreement and a Performance Bond on behalf of the Village of Sheffield, Ohio with future Developers in the Village, the terms and conditions of which shall be substantially similar to the terms and conditions that are contained in the form Developer’s Agreement attached hereto as Exhibits A and A-1 and incorporated herein by reference.
(Ord. 1992. Passed 10-25-04.)
EXHIBIT A
DEVELOPER'S AGREEMENT
THIS AGREEMENT is entered into by and between ___________ , an Ohio corporation, hereinafter referred to as "Developer", and the VILLAGE OF SHEFFIELD, Lorain County, Ohio, hereinafter referred to as “Village". “Council" as referred to herein, shall refer to the Village Council of Sheffield, Lorain County, Ohio, and "Village Engineer" shall refer to the Consulting Engineer of the Village of Sheffield, Lorain County, Ohio or the Engineer designated by Village Ordinance.
WHEREAS, engineering estimates to construct improvements have been agreed upon between the Developer and the Village Engineer; and
WHEREAS, Developer desires to construct aforementioned improvements under terms of this Developer's Agreement; and
WHEREAS, Village is willing to agree to such provisions as are necessary for the construction of said improvements as set forth herein;
NOW, THEREFORE, IT IS HEREBY AGREED BY THE DEVELOPER AND THE VILLAGE OF SHEFFIELD, LORAIN COUNTY, OHIO:
1. Construction of lmprovements.
Said Developer is to construct and install according to specifications all improvements described in the Engineer's plan, a copy of which must be submitted to the Village on or before the date on which the parties enter into this Agreement.
2. Engineer's Estimation of Cost of Improvements.
The Village Consulting Engineer has reviewed the estimated costs of construction of improvements as submitted by the Developer's Engineer and concurs with said estimated cost in the amount of Dollars ($ ).
3. Performance Bond Agreement.
Within Thirty (30) days after the date on which the parties enter into this Agreement, Developer shall provide a financial guarantee of performance to the Clerk-Treasurer of the Village of Sheffield in the form of a Performance Bond, a copy of which is attached hereto as Exhibit A-1, in the amount of ($ ) which is One Hundred Ten (110%) percent of the total Engineer's estimate of costs.
This financial guarantee shall be released to Developer upon completion of all improvements to be accepted by the Village for this phase to the satisfaction of the Village Engineer and upon passage of Ordinance by Council accepting improvements.
4. Deposit for Engineering Fees.
Prior to an ordinance to accept improvements being placed on Council's agenda, the Developer shall deposit the sum of Dollars ($ ) with the Clerk-Treasurer of the Village of Sheffield to cover the Engineering Fees commensurate with the work performed, including Engineer's inspection fees. Should actual expenses exceed the required deposit, all fees must be paid to the Village prior to final acceptance of improvement for the development. The Village reserves the right, at any time, to demand additional funds be deposited under this section should the Clerk-Treasurer determine that remaining funds are insufficient to cover current or future engineering fees. No additional work shall be performed on the project until such time as the additional funds are deposited. Failure to make the required deposits with the Clerk-Treasurer within three (3) business days of said Director's written request shall constitute and be considered cause for the Village to suspend any further development by the Developer until such time that Developer is in full compliance with this Section.
Any deposit over and above actual expenses for these improvements shall be retained by the Village and shall be released to the Developer after the completion of all improvements to the satisfaction of the Village Engineer for the entire development.
5. Deposit for Legal Fees.
Prior to an ordinance to accept improvements being placed on Council's agenda, the Developer shall deposit the sum of _________ Dollars ($ ) with the Clerk-Treasurer of the Village of Sheffield to cover the legal expenses commensurate with the work performed. Should actual expenses exceed the required deposit, all fees must be paid to the Village prior to final acceptance of improvements. The Village reserves the right, at any time, to acquire additional funds to be deposited under this section should the remaining funds be insufficient to cover legal fees. Any deposit over and above actual expenses for the improvements shall be retained by the Village and shall be released to the Developer after the completion of all improvements to the satisfaction of the Village Engineer and upon approval by the Solicitor.
6. Deposit for Miscellaneous Costs. (AS APPLICABLE)
In order to provide the Village with adequate funds to cover miscellaneous costs incurred by the Village relating to the improvements, the Developer shall deposit the sum of Dollars ($ ) with the Clerk-Treasurer of the Village of Sheffield prior to acceptance of improvements by Village Council. This deposit must be made prior to an ordinance to accept improvements being placed on Council's agenda for action. This deposit shall be held by the Clerk-Treasurer for a period of three (3) years from the date of acceptance of the improvements.
7. Indemnification and Liability Insurance. (AS APPLICABLE)
The Developer hereby agrees to hold the Village of Sheffield, its officers, directors, agents and employees harmless and to indemnify them against all claims, expenses and liability as a result of loss or injury arising out of the clearing of land or construction of the improvements.
Prior to the commencement of any work or construction on the Development site, Developer agrees to provide the Village with proof of One Million Dollars ($1,000,000.00) liability insurance protecting the Village from liability arising out of the development of the improvements. Developer shall not allow this insurance to expire earlier than the effective period of any maintenance bond, and shall provide a copy of the insurance policy to remain, at all times, with the Clerk-Treasurer of the Village.
8. Title Insurance. (AS APPLICABLE)
Prior to recording of the final Plat, the Developer shall furnish title insurance in the amount of Dollars ($ ), covering the lands to be dedicated to the Village of Sheffield as indicated on the final Plat and showing the unencumbered, legal title to such dedicated lands in the name of the Village when the final Plat is filed for record.
9. Maintenance Bonds.
Prior to acceptance of dedication of improvements by the Council of the Village of Sheffield, Developer shall deposit with the Clerk-Treasurer a Three (3) year maintenance bond for streets, pavement, storm and sanitary sewers, water systems, street lighting systems and facilities appurtenant thereto in the amount of Dollars ($ ).
10. Sidewalk. (AS APPLICABLE)
Developer's estimated cost for sidewalk and bike path is Dollars ($ ). Should sidewalks not be constructed at the time of acceptance of improvements by Village Council, the Developer shall deposit with the Clerk-Treasurer a cash deposit in the amount of ________ Dollars ($ _ ) which is 150% times the Developer's estimate. This deposit must be made prior to an ordinance to accept improvements being placed on Council's agenda for action. The Developer will be entitled to incremental refunds of 25% of the total amount deposited upon installation of each quarter (1/4) of the total sidewalk/bike path to be installed and upon verification of same by the Village Administrator and/or the Village Engineer.
Developer must install sidewalks within Thirty (30) months of the date in which the Village passes an Ordinance accepting improvements. In the event that sidewalks are not installed within this period, the sidewalk deposit shall be forfeited and the Village shall install the sidewalks and charge to the Developer any additional costs incurred not covered by the sidewallc deposit.
11. Tree Deposit. (AS APPLICABLE)
Prior to an ordinance to accept improvements being placed on Council's agenda, Developer will deposit with the Clerk-Treasurer of the Village of Sheffield the sum of Dollars ($ ) to assure compliance with the requirement of planting of One (1) tree per sublot ($150 x 30) in the development. The bond will be released by the Clerk-Treasurer upon verification by the Village Engineer that trees have been planted in compliance with this Agreement and the Codified Ordinances of the Village of Sheffield.
12. Deposit for Traffic Control Devices. (AS APPLICABLE)
Prior to an ordinance to accept improvements being placed on Council's agenda, the Developer shall be required to deposit with the Clerk-Treasurer the amount of _________ ($ ) Dollars ($25 x _), to be held by the Village for a Two (2) year period commencing with the passage of the Ordinance accepting such improvements. Said sum shall be expended by the Village exclusively for the costs of placement of traffic control devices, as shall be determined by the Director of Public Safety, within the development.
At the expiration of this Two (2) year period, any amount remaining on deposit with the Village shall be refunded to the Developer with the approval of the Safety Director.
13. Sublots Within Floodplain. (AS APPLICABLE)
Developer agrees not to convey any interest in any sublot which is within the floodplain as determined by the current Federal Emergency Management Agency (FEMA) map nor shall any Building Pennit be granted until the Developer obtains permission and authority from FEMA to proceed. Violation of this Section of this Developer's Agreement shall constitute and be considered cause for the Village to suspend any further development by the Developer until such time as these additional funds are deposited and Developer is in full compliance with this Section.
14. Model Home. (AS APPLICABLE)
The Village of Sheffield hereby grants Developer an exception to the Village Subdivision regulations allowing a building pennit for construction of Two (2) model homes in the development, after construction of the utilities and street in front of the model home(s) but prior to acceptance of dedication of improvements by the Village. A sidewalk shall be constructed in front of the model home(s) immediately upon completion of the model home(s). No occupancy permit will be issued for the model home until construction of improvements in the development, and acceptance of dedication of improvements in the development by the Village.
15. Assessments. (AS APPLICABLE)
Prior to the Developer presenting the final plat for recording with the County Recorder's Office, Developer agrees to pay all outstanding assessments to the appropriate governmental entity. Proof that said assessments have been paid must be submitted to the Clerk-Treasurer in order for an ordinance to accept improvements to be placed on Council's agenda.
16. Payment or Satisfaction of Delinquent or Outstanding Obligations. (AS APPLICABLE)
Unless otherwise specified in this document, prior to Council's acceptance of improvements by ordinance, any monies owed by the Developer to the Village of Sheffield, as determined by the Village Clerk-Treasurer, and which remain unpaid, shall be paid by the Developer or approved as satisfied by the Village Clerk-Treasurer.
17. Time for Completion of Improvements.
All improvements are to be completed within a period of ( ) months from the date on which the parties enter into this Agreement unless Council extends this period of time by legislative action. In the event that construction of improvements is not instituted within this ( ) month period or within the period pursuant to an extension granted by the Village, Developer shall, if requested by the Village Engineer, provide new engineering estimates of cost of construction of improvements and the Village Engineer may require, if necessary, the performance bond, maintenance bond and engineering and legal fee deposits to be updated to reflect the revised Engineer's estimate of cost.
18. Actual Costs of Improvements.
The Developer, prior to passage of an Ordinance accepting improvements, shall submit to the Clerk-Treasurer of the Village the actual costs of improvements itemized as to roadway (length, width, type, unit cost, street name), traffic control (signalization, location, cost), sanitary sewers (length by size, unit cost, street location), storm sewers (length by size, unit cost, street location) water distribution (length by size, unit cost, street location), park/bike trail(s) (if applicable, length, width, unit cost, location) and pump station(s) (if applicable, cost, location, description) that are to be accepted by the Village. The costs for these items shall include all incidentals such as hydrants, valves, manholes, catch basins, etc., as necessary to construct the improvement.
19. Engineer's As-Built Plans.
Developer shall file with the Village its Engineer's as-built plans within Ninety (90) days from the date of the Village's acceptance of improvements.
20. Storm Water Detention and Fee.
Due to the location of this Development, the Village Consulting Engineer requires an on-site storm water detention basin.
21. Storm Water Detention Area, Common Areas and Easements. (AS APPLICABLE)
Developer shall require the formation of a Homeowner's Association which shall assume responsibility for all maintenance, upkeep, repair, replacement and management of the storm water detention area or other common area. The rules of the Homeowner's Association shall prohibit the construction of any improvement or structure or the retention of any obstruction of any kind in the storm water detention area, common areas or easements. Said rules shall include the establishment of a special fund approved by the Village Engineer and Solicitor for the sole purpose of maintaining the storm water detention area and its pertinent easements. Prior to recording of the final Plat, the rules or bylaws of the Homeowner's Association shall be approved by the Village Solicitor, and reference to the rules or bylaws of the Homeowner's Association shall be contained in the recorded Plat. All conveyances by the Developer shall contain deed restrictions referring to the requirement of membership in the Homeowner's Association. Should the Homeowner's Association fail to maintain the storm water detention area or other common areas, the Village may enter upon the land and perform any necessary maintenance, repair or replacement, and shall charge all costs incurred by the Village, including legal and engineering fees, to the Homeowner's Association and/or the individual property owners. Easements for this purpose, acceptable to the Village Engineer and Solicitor, shall be provided by Developer. Compliance with this Section shall be a condition precedent to issuance of Building Permits.
22. Maintenance and Repair of Storm Sewers Not Located on Village Right-of-Way. (AS APPLICABLE)
The Homeowner's Association and individual property owners shall be responsible for the maintenance and repair of all storm sewers located within the development other than those located within the Village right-of-way. In the event that the Homeowner's Association or property owners fail to keep in good repair and maintain said storm sewers, the Village, upon notice to the Homeowner's Association, shall have the right to enter upon the developed lands and perform any repairs deemed necessary to avoid or abate any conditions which obstruct the flow of storm water in order to assure proper drainage. All costs incurred by the Village for repairs and maintenance of the storm sewers shall be charged against the Homeowner's Association or property owners.
23. Compliance by Developer as Condition Precedent to Subsequent Development or Phases. (AS APPLICABLE)
Developer acknowledges and agrees that he will fully comply with all terms and conditions contained herein as a condition precedent for the commencement of any subsequent development or phase of development and the Village may withhold approval of any such subsequent development or improvements until such time as the Developer fulfills all the terms, conditions and requirements set out herein.
24. Off-Site Storm Drainage. (AS APPLICABLE)
The Developer agrees to comply with plans and off-site drainage approved by the Village Consulting Engineer and shall perform the clearing and cleaning of ditches and land reasonably necessary at its expense. The Village will provide the Developer with access to land owned and controlled by the Village for this purpose and the Developer shall be responsible for obtaining licenses or easements on all private lands necessary to satisfy the drainage plans approved by the Village Consulting Engineer.
25. License to Enter Upon Private Streets. (AS APPLICABLE)
Developer herein agrees to grant to the Village of Sheffield (i.e., Fire Department, Police Department, Service Department and the like), a license to enter upon any private streets within the development for the purposes of carrying out patrolling and security and necessary governmental functions. While present on said private streets, said public employees or agents for the various departments shall have those rights, privileges, defenses and immunities granted Village employees set forth in Ohio Revised Code including but not limited to Chapter 2744.
26. Breach of Contract.
The Developer further agrees that any violation of or non-compliance with any of the provisions and stipulations of this Agreement shall constitute a breach of contract. A breach of contract shall also be deemed to have occurred in the event of the Developer's failure to perform work for a period of days, the Developer's insolvency, appointment of a receiver, filing of a voluntary or involuntary petition in bankruptcy, the commencement of a foreclosure proceeding of a lien against the development property, or its conveyance in lieu of foreclosure. The Village agrees that in the event of a breach, it shall provide Developer with notice thereof in writing. Should Developer fail to remedy the breach, to the satisfaction of the Village, within Thirty (30) days after receiving notice thereof from the Village, the Engineer of the Village shall have the right to stop the work forthwith and use Developer's guarantees for such purpose and require Developer to pay any additional amount required to complete the work.
27. Preservation and Restoration of Property. (AS APPLICABLE)
Developer shall maintain the work during construction and until final acceptance. This maintenance shall constitute continuous and effective work prosecuted as required with adequate equipment and forces to the end that the roadbeds, road surfaces and structures are kept in satisfactory condition at all times.
Developer shall be responsible for all damage or injury to property of any character, including roadbeds and road surfaces, during the prosecution of the work, resulting from any act, omission, neglect or misconduct in his manner of method of executing said work satisfactorily, or due to his non-execution of said work, or at any time due to defective work or materials, and said responsibility shall not be released until the work shall have been completed and accepted. When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect or misconduct in the execution of the work or in consequence of the non-execution thereof on the part of contractor, he shall restore, at his own expense, such property to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding, or otherwise restoring as may be directed, or he shall make good such damage or injury, in an acceptable manner.
In the event of any damage or injury to property as stated herein, all deposits and financial guarantees set forth in this Agreement shall be retained by the Village and not released until such time as the appropriate repairs are made and acceptable to the Village Engineer and Solicitor.
28. Ingress and Egress. (AS APPLICABLE)
Developer shall restrict all movement of loads, vehicles and other equipment into and from site in strict accordance with a route approved by the Village Administrator.
29. Cleaning Up.
During the construction, the Developer shall keep the site of the work and adjacent premises as free from material, debris and rubbish as is practicable and shall remove this waste entirely and at once, if, in the opinion of the Village, such material, debris or rubbish constitutes a nuisance, a safety hazard or is objectionable in any way to the public.
Upon completion and before final acceptance of the work, the Developer shall remove from the site of the work and adjacent premises all machinery, equipment, surplus materials, falsework, excavated and useless materials, rubbish, temporary buildings, barricades and signs, and shall restore the site to the same general conditions that existed prior to the commencement of its operations.
The Developer shall clean off all cement streaks or drippings, paint smears or drippings, rust stains, oil, grease, dirt, and any other foreign materials deposited or accumulated on any portion of its work, or existing work, due to its operations.
In the event Developer fails to comply as set forth herein, the Village shall perform the necessary work to accomplish the clean up set forth herein and shall charge the Developer for said work.
In the event of non-compliance as stated herein, all deposits and financial guarantees set forth in this Agreement shall be retained by the Village and not released until such time as the appropriate clean up is made and acceptable to the Village Engineer and Law Solicitor.
30. Warranty Against Defects.
Developer shall warrant all improvements to be free from defects and shall make all necessary repairs or modification to said improvements for a period of Three (3) years from acceptance of dedication of improvements by the Village of Sheffield. If the Developer fails to meet the warranty obligations in a timely manner, the Village of Sheffield may contract with any other party for the necessary work or use its own employees to perform the work and to be reimbursed by the Developer or, if sufficient funds are available, to draw upon the financial guarantees provided in this Agreement.
31. Village Ordinance and Regulations, Survival of Agreement, Non-Waiver.
Nothing in this Developer's Agreement shall constitute a waiver of the rights of the Parties, including local government sovereign immunity. All Village Ordinances and Regulations not inconsistent with this Agreement shall remain in full force and effect, and shall be binding upon and control construction and development of the improvements, and nothing contained in this Agreement, nor acceptance of dedication of improvements by the Village, shall limit the effect of same, including, but not limited to, design and construction, planting of trees, street lighting, conveyance of required easements, payment of storm drainage fees, park fees, sewer tap fees, and any other requirements of the Codified Ordinances of the Village.
32. A.D.A. Compliance. (AS APPLICABLE)
Developer shall fully comply with all relevant requirements of the Americans with Disabilities Act and all site improvements subject to this law must be approved by the Village of Sheffield prior to construction.
33. Severability Clause.
If any part, clause, provision or condition of this Developer's Agreement is held to be void, invalid, or inoperative, such party, clause, provision or condition will be severed and will not render invalid the remaining portions of this Agreement.
34. Obligation to Notify. (AS APPLICABLE)
Developer shall notify any transferee of the developed property of the existence, terms and conditions contained in this Agreement and any easements or restrictions required hereunder, and shall provide the Village with a copy of the notification immediately thereafter.
35. Addresses of Parties for Purpose of Notice.
After obligation to notify all notices and communications between parties pursuant to this Agreement shall be made upon the Village through the Office of the Mayor at Sheffield Village Municipal Complex, 4340 Colorado Avenue, Sheffield Village, Ohio, and upon the Developer at
36. Parties Bound.
This Agreement shall be binding upon and inure to the benefit of the Developer, its builders, contractors, subcontractors, its heirs, executors, administrators, agents and assigns, and shall further be binding upon and inure to the Village and its assigns.
37. Modification or Amendment.
This Developer's Agreement shall not be modified or amended except by a written instrument signed by Developer and the Mayor or other authorized agent of the Village of Sheffield and approved by vote of a majority of the members of Village Council.
IN WITNESS WHEREOF, the parties have affixed their signature hereto this ___ day of __________ , 2004.
WITNESSES: INC.
By:
Title:
“Developer”
WITNESSES: VILLAGE OF SHEFFIELD
By:
Name
Title:
“Village”
Approved as to Form by:
Luke F. McConville, Esq.
Solicitor
Village of Sheffield
Exhibit A-I
PERFORMANCE BOND AGREEMENT
THIS AGREEMENT is entered into by and between , hereinafter referred to as “Developer," and the VILLAGE OF SHEFFIELD, Lorain County, Ohio, hereinafter referred to as “Village”, "Council” as referred to herein, shall refer to the Village Council of the Village of Sheffield, Lorain County, Ohio, and "Village Engineer" shall refer to the Consulting Engineer of the Village of Sheffield, Lorain County, Ohio or the Engineer designated by Village Ordinance.
WHEREAS, the Developer has agreed to construct the improvements in ________ (hereinafter "Improvements") in accordance with the Regulations of the Village of Sheffield, and in accordance with a Developer's Agreement entered into between Developer and the Village on or about the __ day of _______ , 2004; and
WHEREAS, the Developer's Agreement provides that the Developer shall furnish financial guarantees of performance in an amount equal to 110% of the estimated construction costs, engineering and inspection fees in a form, manner of execution and surety approved by the Solicitor of the Village of Sheffield; and
WHEREAS, based upon the estimates of cost of construction of the improvements by the Developer's Engineer, approved by the Village Engineer, Developer is required to provide a financial guarantee of performance to the Clerk-Treasurer of the Village of Sheffield in the amount of Dollars ($ ).
NOW, THEREFORE, in consideration of the foregoing promises and to insure the faithful performance of said Developer's Agreement, the Developer has undertaken the following:
1. Developer will post a surety bond with the Clerk-Treasurer in a form, manner of execution and surety acceptable to the Village of Sheffield in the sum of ___________ Dollars ($ _____).
2. The Developer and its surety shall at all times keep the records of said Performance Bond open to inspection by the Engineer of the Village or any other duly authorized agent of the Village.
3. Upon completion of all improvements to the satisfaction of the Village Engineer, payment of all engineering and legal expenses of the Village of Sheffield, and compliance with all provisions of the Developer's Agreement upon written instruction from the Clerk-Treasurer of the Village of Sheffield, the surety shall be released from its obligations hereunder.
4. In the event of Developer's default, as defined in the Developer's Agreement, the Village shall have the right to execute on the Performance Bond herein posted and to complete construction of improvements, or any part thereof, and to pay any engineering or legal fees for the improvements over and above the Developer's deposit, and the surety is authorized and required to release the funds upon certification by the Clerk-Treasurer of the Village of Sheffield that the funds will be used for completion of construction of improvements and any applicable fees.
5. The surety shall accept as full and complete evidence of default and of the resulting right of the Village of Sheffield to complete said project or any portion thereof a copy of the resolution from the Village of Sheffield duly authenticated by the Clerk of Council declaring said default and the intention of the Village of Sheffield to proceed to complete the performance of said Improvements or any portion thereof.
IN WITNESS WHEREOF, the parties have affixed their signature hereto this ___ day of _________ , 2004.
WITNESSES: INC.
By:
Title:
“Developer”
WITNESSES: VILLAGE OF SHEFFIELD
By:
Name
Title:
“Village”
Approved as to Form by:
Luke F. McConville, Esq.
Solicitor
Village of Sheffield
ACKNOWLEDGMENT AND ACCEPTANCE
BY LENDING INSTITUTION
The lending institution for , for _______ _ does hereby acknowledge receipt of a copy of this Performance Bond Agreement and the Developer's Agreement, accepts same, is willing to be bound by these documents as additional escrow instructions for the financial guarantees therein provided.
Signature of Officer
Printed Name of Bank or Surety
Title of Officer
Date
(Ord. 1992. Passed 10-25-04.)