Duluth UDC (unnumbered, p.346: Development Performance And Maintenance Agreement)

DEVELOPMENT PERFORMANCE AND MAINTENANCE AGREEMENT TO: DULUTH PLANNING AND DEVELOPMENT DEPARTMENT DEVELOPMENT NAME: ______________________________________________________________________ DEVELOPMENT PERMIT NUMBER: _____________ LOCATION: ____________________________________ PHASE SUBMITTED FOR FINAL PLATTING OR DEVELOPMENT APPROVAL: _________________________ A final inspection of this Development [Phase] has been completed and the Certificate of Development Conformance has been approved and accepted by the Director of Planning and Development. This is to provide assurance that the below-signed Owner of this development agrees to the following as a condition precedent to the approval of any applicable Final Plat for a subdivision or the issuance of any Certificate of Occupancy for any site development project. 1. PERFORMANCE a. The topping course on all streets, as required by the Duluth Unified Development Code, shall be completed on or before ________________ , 20____ , said date being no more than nine calendar months from the date of Certificate of Development Conformance approval. b. The installation of sidewalks, as required by the Duluth Unified Development Code, shall be completed on or before ________________ , 20____ , said date being no more than nine calendar months from the date of Certificate of Development Conformance approval. 345 | P a g e Article Eleven. Procedures and Permits c. Final landscaping, as shown on the approved Buffer and Landscape Plan or as required by the Duluth Unified Development Code, as applicable, shall be completed on or before ________________ , 20____ , said date being no more than nine calendar months from the date of Certificate of Development Conformance approval. d. All street shoulders and all easements shall be grassed, as required by the Duluth Unified Development Code, and shall be completed on or before ________________ , 20____ , said date being no more than nine calendar months from the date of Certificate of Development Conformance approval. 2. PERFORMANCE SURETY In guarantee of the faithful completion of all improvements listed under Section 1, PERFORMANCE, the Owner agrees to furnish to the City a letter or letters of credit or other acceptable security with good and sufficient surety acceptable to the City in the following sums representing 110% of the estimated costs, as approved by the City Engineer, for the specific type of surety provided, as required by the Unified Development Code of Duluth, Georgia: a. $ ____________ , representing 110% of the estimated cost of completing the final street topping, [for those streets identified on the attached plat of the subdivision] [as listed as follows: __________] [as attached hereto as Schedule A]; and, b. $ ____________ , representing 110% of the estimated cost of completing the construction of all sidewalks, [as identified on the attached plat of the subdivision] [as listed as follows: __________] [as attached hereto as Schedule B]; and, c. $ ____________ , representing 110% of the estimated cost of materials, and other attendant costs incidental to the installation of the final landscaping, [as identified on the approved Buffer and Landscape Plan] [as listed as follows: __________ ] [as attached hereto on Schedule C]; and, d. $ ____________ , representing 110% of the estimated cost of grassing all street shoulders and easements, [as identified on the attached plat of the subdivision] [as listed as follows: __________] [as attached hereto as Schedule D]. The Owner further agrees and acknowledges that, upon completion of the work required under Section 1, PERFORMANCE, all monies due to third parties for such work will have been paid (or if not will be the responsibility of the Owner), that the improvements will be free and clear of any liens or encumbrances and that any liens or encumbrances subsequently filed on such facilities and improvements covered herein shall be the sole responsibility of the Owner. A default in the Performance Surety shall be deemed to have occurred on the part of the Owner, if the Owner shall fail to complete the subject improvements within the time set forth under Section 1, PERFORMANCE, or any extensions thereof; or, prior to the expiration of such period, if in the sole judgment of the City, the Owner has: (1) Abandoned or unnecessarily delayed the performance of its obligations under the Agreement; or, (2) Renounced or repudiated its obligations under the Agreement; or, (3) Clearly demonstrated through insolvency, delay or otherwise, that its obligations under the Agreement cannot be completed within the time allotted under the Agreement; or, (4) Not complied with or is not in compliance with the minimum standards of the Duluth Unified Development Code, for any one or more of the subject improvements, or (5) Transferred ownership of any portion of the project to a third party without assignment of the remaining responsibilities hereunder; or (6) Caused or experienced any damage to new or previously existing improvements creating an emergency situation. 3. MAINTENANCE a. Maintenance Period. 346 | P a g e Article Eleven. Procedures and Permits The Owner hereby warrants to the City that all stormwater detention facilities and all street improvements (including but not limited to the street pavement, base, sidewalks, sub-grades, cuts, fills, shoulders, grassing and traffic signs), stormwater drainage facilities, and required landscaping within this Development [Phase] shall be repaired, replaced or restored as necessary to maintain compliance with the standards and requirements of the Duluth Unified Development Code in force as of the date of this Agreement. This warranty shall begin on the date of approval of the accompanying CERTIFICATE OF DEVELOPMENT CONFORMANCE, and shall continue in full force and effect for no fewer than 18 calendar months after said approval date or the last completion date of all improvements included under Section 1, PERFORMANCE, whichever last occurs, unless extended under paragraph b of this Section 3. b. Extension of Maintenance Period. In the event that a second phase or any other later stage of the project will utilize the same streets or drainage facilities as those covered by this Development Performance and Maintenance Agreement, the maintenance warranty provided by the Owner under paragraph a of this Section 3 and the maintenance surety provided under Section 4, MAINTENANCE SURETY, below, shall be extended automatically in duration and amount, in order to continue the maintenance guarantee of the street and drainage improvements covered herein throughout the maintenance period of the second or later phase of the project. 4. MAINTENANCE SURETY a. Street Improvements and Drainage Facilities. The Owner agrees to furnish to the City a letter or letters of credit with good and sufficient surety acceptable to the City in the sum of $ ____________ , representing 33% of the construction cost of the street improvements and drainage facilities, in guarantee of the faithful performance of the maintenance required under Section 3, MAINTENANCE, above. The stormwater detention facilities, street pavement, base, sidewalks, sub-grades, cuts, fills, shoulders, grassing, traffic signs and drainage facilities in the development must be properly maintained and free from faults in design, materials and workmanship. b. Landscaping. The Owner agrees to furnish the City a Warranty Agreement for Required Landscaping in guarantee of the faithful maintenance required under Section 3, MAINTENANCE, above and for the replacement or restoration of plantings and landscape material as needed to maintain compliance with the buffer and landscaping requirements of the Duluth Unified Development Code, as applicable to the project. c. Limitation of Owner’s responsibility. It is agreed that the Owner shall be responsible for the full cost of maintenance after completion of all improvements covered by this Development Performance and Maintenance Agreement without any limitation established by the amount of maintenance surety provided under this Section 4. 5. INDEMNIFICATION The Owner hereby agrees to indemnify the City and hold the City harmless from any and all damages which the City may suffer and from any and all liability, claims including interest thereon, demands, attorney's fees and costs of defense, or judgment against it, arising from errors or omissions in the design or construction of the development or from the effects of stormwater flows onto, from or across any and all lands as a result of the development, and Owner expressly agrees to defend against any claims brought or actions filed against the City where such claim or action involves in whole or in part, the subject of the indemnity contained herein whether such claims or actions are rightfully or wrongfully brought or filed. This indemnification shall commence upon the date of this Agreement and shall continue in full force and effect for a period of 20 years thereafter. 6. SEVERABILITY If any section, subsection, sentence, clause, or phrase of this agreement shall be declared or otherwise adjudged unconstitutional or void, the validity of the remaining portions of this agreement shall not be affected thereby, it being the intent of the City of Duluth in adopting this agreement that no portion or 347 | P a g e Article Eleven. Procedures and Permits provision of this agreement shall become inoperative or fail by reason of the unconstitutionality or invalidity of any section, subsection, sentence, clause, phrase or provision of this agreement. 7. ASSIGNMENT OF LIABILITY The Owner hereby agrees that any assignment or transfer of the provisions of Section 5, INDEMNIFICATION, above, in whole or in part, to any successor in title or other person, shall be recorded with the Clerk of the Superior Court of Gwinnett County and a copy of said legal instrument, as recorded, shall be filed with the Duluth Planning and Development Department. Date Owner (Print Name of Corporation or entity) ATTEST: Corporate Secretary (affix Corporate Seal), or Notary Public (attach Certificate of Corporate Resolution) Signature My commission expires: Name (of individual signing above) Address Telephone number DEVELOPMENT AND MAINTENANCE AGREEMENT APPROVED Director of Planning and Development Mayor Date