Duluth UDC (unnumbered, p.354: Performance Bond)

353 | P a g e Article Eleven. Procedures and Permits PERFORMANCE BOND DEVELOPMENT NAME: ______________________________________________________________________ DEVELOPMENT PERMIT NUMBER: _________ LOCATION: ________________________________________ PHASE SUBMITTED FOR FINAL PLATTING OR DEVELOPMENT APPROVAL: _________________________ SUBJECT IMPROVEMENTS: As specifically identified and described as follows: 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, 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, 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, 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]. KNOW ALL MEN BY THESE PRESENTS, that ___________________________ , hereinafter referred to as “Principal,” and ____________________________ , a ______________ Corporation authorized to do business in the State of Georgia, hereinafter referred to as “Insurer,” hereby declare that: 1. We are held and firmly bound unto the City of Duluth, Georgia (hereinafter referred to as the “City”) in the full and just sum of $__________________________ , lawful money of the United States of America, payable to the City under the terms of this Bond, and we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by this Bond. 2. This Bond shall be void if the Principal performs, in every respect, all of its obligations with regard to the subject improvements listed herein. Otherwise, this Bond shall continuously remain in full force and effect until released by the City. 3. (A) It shall be the duty of the Principal to notify Insurer of any revision to the plans, profiles and specifications of the subject improvements. Except as otherwise provided herein, Insurer expressly waives any right to receive notice from the City or to review or approve any revisions to the plans, profiles and specifications of the subject improvements that are required to meet City, State or federal standards. No such revisions of any kind in the work shall in any way affect the obligation of the Insurer under this Bond; except that the Principal shall submit to the Insurer for review and approval, and the Insurer shall have the right to review and approve, any such revision that: (1) Grants the Principal any extension of time beyond the period provided for in the Agreement for completion of the subject improvements under the Agreement; (2) Increases the cost of remaining construction of the subject improvements required under the Agreement by more than ten percent of the original sum of the Bond, as established by the estimate of Principal; provided, however, that the Insurer shall be in all cases conclusively bound for purposes of this subparagraph by the estimate rendered by the Principal to the City as to the cost of any such revision. Where revisions are made without approval of Insurer as required by this subparagraph 3(A)(2), Insurer shall be released from any liability for such revisions in excess of ten percent of the original sum of this Bond; provided, however, that such revision without review and approval of Insurer as required under this subparagraph 3(A)(2) shall not otherwise operate as a release or discharge of any obligation of Insurer under this Bond. (B) The failure or refusal of the City to take any action, proceeding or step to enforce any remedy or 354 | P a g e Article Eleven. Procedures and Permits exercise any right under the Agreement or the taking of any action, proceeding or step by Principal, acting in good faith upon the belief that same is permitted by the provisions of the Agreement, shall not in any way release Principal or Insurer, or either of them, or their respective executors, administrators, successors or assigns, from liability under this Bond. Except as set forth herein, Insurer hereby waives notice of any amendment, indulgence or forbearance, made, granted or permitted. (C) The City, Principal and Insurer intend each provision of this Bond to be valid and binding upon them, and expressly agree to abide thereby. (D) In the event of a default (as defined in paragraph 4(A) of this Bond), the City may terminate whatever rights Principal and/or Insurer may have, to perform further work on the project. 4. (A) A default shall be deemed to have occurred on the part of the Principal, if Principal shall fail to complete the subject improvements under the Agreement within the time set forth therein or any extensions thereof; or, prior to the expiration of such period, if in the sole judgment of the Authorized City Official, the Principal 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 Unified Development Code of the City of Duluth, Georgia, for any one or more of the subject improvements. (B) If Principal defaults in the performance of all or any part of the obligations specified in the Agreement, the Authorized City Official shall give written notice of the default to the Insurer, with a copy to the Principal. In the event of such default and notice, Insurer shall within 30 calendar days of receipt of the default notice, give written response notice to the Authorized City Official stating whether it will assume or decline to assume the obligations of the Principal for completion of the subject improvements; and should it elect to assume said obligations Insurer shall be required to complete the subject improvements to the satisfaction of the City within 30 calendar days of said response notice or the date of completion of the subject improvements provided for under the Agreement, whichever is later. In the event that Insurer elects to assume the obligations of Principal as provided herein and thereafter fails to faithfully perform all or any part of the work, or should it unnecessarily delay all or any part of the work, the City may proceed as provided in paragraph 5 of the Bond. 5. Should Insurer, following notice of default, notify the City that it elects not to assume the obligations of Principal for completion of the subject improvements under the Agreement; or fails within 30 calendar days of receipt of the default notice as provided in paragraph 4 above to notify the City whether it elects to assume the obligations of Principal; or having elected to assume the obligations of Principal should it then fail to perform; then in either event the City may elect any of the following procedures or any combination thereof: (A) Terminate whatever rights Principal and/or Insurer may have to perform further work on the project. (B) Make demand on the Insurer for cash payment to be rendered immediately, but in no case less than five business days, and without further action, in the total amount of the Bond less the actual cost of the subject improvements expended as of the date of demand. Such expenditures shall be evidenced by invoices and proof of payments and shall be subject to review and acceptance by the City as to reasonableness. (C) Take over or contract anew all or any part of the work on the subject improvements that is not completed and complete the same. The Principal and Insurer shall be jointly and severally liable to the City for all costs incurred in completion of the subject improvements and/or correction thereof. Such costs shall include necessary repairs, replacement or restoration of work previously completed and any cost to satisfy any liens or encumbrances placed on the subject improvements; provided however, that Insurer’s liability shall not be greater than the total amount of the Bond. 355 | P a g e Article Eleven. Procedures and Permits (D) Take such other action as necessary, including but not limited to institution of legal action in a Court of competent jurisdiction, to compel payment of the total amount of the Bond or all costs incurred by the City in completion of the subject improvements and/or correction thereof, whichever is the larger amount, plus Court costs and attorneys’ fees. The Principal and Insurer consent and agree to comply with any and all elections of the above remedies, procedures and demands with respect thereto exercised by the City and further agree in the event of a failure to so comply with any demand made by the City pursuant to Paragraphs 4 and 5 herein, then they consent to and waive protest against the entry of a consent judgment in an amount no less than the total amount of the Bond or such greater amount to cover the cost of completion of the subject improvements, plus Court costs and attorneys' fees; provided, however, that any such judgment against the Insurer shall not exceed the total amount of the Bond. 6. Insurer shall have the right, at any time within 30 days of the default notice provided for in 4(B) hereof, to request that the Authorized City Official determine a sum constituting the total amount of the Bond less the actual cost of the subject improvements expended as of the date of demand (as evidenced by invoices and proof of payments acceptable to the Authorized City Official as to reasonableness, but not including payments for inadequate or improper construction), as of that time. Should it so elect, Insurer may then pay over to the City the sum so determined and be released from any further obligations under this Bond. If funds are paid over under this section and the paid-over funds are not sufficient to complete the work, the City's sole remedy shall be to proceed against the Principal for any deficiency. 7. If any action or proceeding is initiated in connection with this bond and any and all obligations arising hereunder, the venue thereof shall be the City of Duluth, Georgia, and it is further understood and agreed that this contract shall be governed by the laws of the State of Georgia, both as to interpretation and performance. 8. All notices sent to the Principal and Insurer shall be sent to the addresses set forth on the signature page unless said Principal and Insurer notify the Authorized City Official in writing of such change. If the address of the Principal or Insurer changes, the Principal or Insurer shall immediately notify the Authorized City Official in writing of such change. Failure to notify the Authorized City Official of any change in address is deemed to be a waiver of any requirement for notice under this Bond to the Principal or Insurer. All written notice to the City required under this Bond shall be sent certified mail and addressed to the Authorized City Official with a copy to the City Attorney. 9. If any one or more of the provisions of this Bond are determined to be illegal or unenforceable by a court of competent jurisdiction, all other provisions shall remain in effect. 10. The Principal, his agents, employees or contractors, will comply with the applicable ordinances, laws, regulations and requirements of the City, including the Unified Development Code of the City of Duluth. 11. The Principal will hold harmless the City or any of its officers from any expense incurred through the failure of the Principal to perform or complete its obligations under the Agreement, or from any damages growing out of the negligence of the Principal, or his agents, employees or contractors. 12. Approval of this Bond by the City of Duluth Mayor and City Council shall be deemed acceptance without further notice to the Principal and/or Insurer. 13. The failure of the City to enforce or timely comply with any provision of this Bond shall not be deemed a waiver of the obligation of the Principal and Insurer hereunder. 14. Upon completion of the subject improvements, all monies due to third parties for such work will have been paid (or if not will be the responsibility of the Principal), 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 Principal. 15. The provisions and obligations of this Bond shall be controlled by and interpreted by the provisions and requirements of the Unified Development Code of the City of Duluth, Georgia, in effect as of the date of execution of this Bond by the Principal and Insurer. IN WITNESS WHEREOF the parties hereto have caused this agreement to be SIGNED, SEALED AND DELIVERED this ______________ day of ______________ , 20____ : 356 | P a g e Article Eleven. Procedures and Permits PRINCIPAL: ATTEST: (Print Name of Corporation or entity) Corporate Secretary (affix Corporate Seal), or Notary Public (attach Certificate of Corporate Resolution) Signature My commission expires: Name (of individual signing above) Address Date Telephone number INSURER: ATTEST: (Print Name of Corporation or entity) Corporate Secretary (affix Corporate Seal), or Notary Public (attach Certificate of Corporate Resolution) Signature My commission expires: Name (of individual signing above) Address Date Telephone number APPROVED BY THE DULUTH MAYOR AND CITY COUNCIL Clerk to the Mayor and City Council Mayor Date Final Inspection has been completed and RELEASE IS RECOMMENDED by: City Engineer Date 357 | P a g e Article Eleven. Procedures and Permits RELEASE OF PERFORMANCE BOND Director of Community Development Date