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1 Warranty Bond Agreement (Cashier’s Check Form) THIS WARRANTY BOND AGREEMENT (this “Agreement”) is made and entered into effective 20 , by and between MILLCREEK, a municipal corporation of the State of Utah, whose address is 3330 South 1300 East, Millcreek, Utah 84106 (the “City”), and the undersigned, (referred to in this Agreement as “Developer”). R E C I T A L S: A. Developer has made improvements to certain property (the “Property”) that is described on exhibit annexed hereto. B. The improvements were required by the Millcreek Code of Ordinances or the planning commission associated with development of the Property. C. The Millcreek Code of Ordinances requires the Developer to post a warranty bond guaranteeing that the Improvements (defined below) are free of defects, normal wear and tear excepted. Accordingly, the Developer hereby deposits with the City a cashier’s check in the amount of the Deposit (defined below). D. The parties intend to set forth herein their entire agreement regarding the Improvements and to supersede hereby and to consolidate herein all of their prior negotiations and agreements, whether oral or written, regarding the same. A G R E E M E N T: NOW, THEREFORE, in consideration of the recitals above, the mutual covenants and undertakings of the parties hereto, and for other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Section 1. Developer’s Warranty Obligations. Developer irrevocably acknowledges its obligation to install the improvements (“Improvements”) as described on exhibit on the Property without cost to the City and hereby warrants that the Improvements will be free of defects for a period of one year after all the Improvements have been installed and finally accepted by the City (the “Warranty”). Section 2. Repairs. Developer and the City agree that all responsibility for repair and maintenance of the Improvements remains with Developer until all the Improvements has been installed and finally accepted by the City (Improvements and acceptance by the City is collectively, “Improvements/Acceptance”) and the Warranty has expired. Section 3. Deposit. To assure and guarantee the Warranty, Developer shall contemporaneously herewith deposit with the City a cashier’s check made payable to the order of the City in the amount of issued by as cashier’s check ---PAGE BREAK--- No. (collectively referred to as “the Deposit”). The City shall deposit the referenced cashier’s check in its general fund. The amount of the Deposit is ten percent (10%) of the estimated cost of Improvements as described on exhibit Section 4. Assignment of Deposit. Developer hereby assigns, transfers, and sets over to the City all of Developer’s right, title, and interest in and to the full proceeds of the Deposit and also hereby assigns, transfers, and sets over to the City the right to use the Deposit in the event of any default or noncompliance in the performance for which this bond is posted and filed. Section 5. Release of Deposit. If one year after final Improvements/Acceptance and the Improvements are then free of defects, normal wear and tear excepted, the City will release the remaining amount of the Deposit. Section 6. Failure of Warranty. If the installed Improvements is not free of defects for one year after final acceptance by the City, then the City may unilaterally (without consent or approval of any kind from Developer) at any time thereafter use the Deposit (full or any amount). The City shall be deemed fully authorized (without further action or notice whatsoever) to use as much of the Deposit as is required (in the City’s sole opinion) to satisfactorily complete to repair any defects therein, including (without limitation) the cost of any and all incidental construction, legal, administrative, or engineering fees or expenses incurred by the City to effect such work. Any balance of the Deposit remaining after payment of all such costs, fees, and expenses, and a reasonable reserve, in an amount determined by the City, shall be refunded to Developer. Section 7. No Waiver or Estoppel. This Agreement is irrevocable unless revoked by the mutual consent of Developer and the City. Neither this Agreement nor the deposit of the referenced cashier’s check by Developer and the acceptance of the Deposit or this Agreement by the City shall constitute a waiver or estoppel by or against the City concerning the Improvements, nor shall any such matters in any way relieve Developer from the obligations to fully perform under the Warranty, regardless of whether or not the Deposit is adequate to pay for the satisfactory fulfillment of the Warranty. If the Deposit is inadequate to pay for the cost of the Warranty for whatever reason, Developer agrees to pay such deficiency independent of this Agreement, which amount may include any and all incidental construction, legal, administrative, or engineering fees or expenses incurred by the City to affect such work. Additionally, no further permits or approvals shall be issued to the Developer until such deficiency is cured. Section 8. General Provisions. The following provisions are also an integral part of this Agreement: Binding Agreement. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto. Captions. The headings used in this Agreement are inserted for reference purposes only and shall not be deemed to define, limit, extend, describe, or affect in any way the meaning, scope, or interpretation of any of the terms or provisions of this Agreement or the intent ---PAGE BREAK--- hereof. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures upon any counterpart were upon the same instrument. All signed counterparts shall be deemed to be one original. Severability. The provisions of this Agreement are severable, and should any provision hereof be void, voidable, unenforceable, or invalid, such void, voidable, unenforceable, or invalid provision shall not affect the other provisions of this Agreement. Waiver of Breach. Any waiver by either party of any breach of any kind or character whatsoever by the other, whether such be direct or implied, shall not be construed as a continuing waiver of, or consent to, any subsequent breach of this Agreement. Cumulative Remedies. The rights and remedies of the parties hereto shall be construed cumulatively, and none of the rights and remedies shall be exclusive of, in lieu of, or a limitation of any other right, remedy, or priority allowed by law. Amendment. This Agreement may not be modified, except by an instrument in writing signed by the parties hereto. Interpretation. This Agreement shall be interpreted, construed, and enforced according to the substantive laws of the state of Utah. Attorneys' Fees. In the event any action or proceeding is brought by either party regarding this Agreement, the prevailing party shall be entitled to recover its costs, expert witness fees, and reasonable attorneys' fees, whether such sums are expended with or without suit, at trial, or on appeal. Notice. Any notice or other communication required or permitted to be given hereunder shall be deemed to have been received upon personal delivery or actual receipt thereof or within two days after such notice is deposited in the United States mail, postage prepaid, certified, and addressed to the respective addresses set forth herein or to such other address(es) as may be supplied by a party to the other from time to time in writing. Time of Essence. Time is of the essence of this Agreement. Assignment. Developer may not assign or otherwise convey its rights or delegate its duties under this Agreement without the express written consent of the City. No Partnership. The City and Developer do not by this Agreement in any way or for any purpose become partners or joint ventures with each other. Benefit of Agreement. The benefits and protection provided by this Agreement shall inure solely to the City. The City shall not be liable for any claim or obligation of Developer. City may, in its sole and absolute discretion, interplead the Deposit (full or any ---PAGE BREAK--- amount thereof) with a court pursuant to Utah R. Civ. P. 67 and Utah Code Ann. § 76-27-4. Exhibits. All exhibits annexed to this Agreement are expressly made a part of this Agreement as though completely set forth herein. All references to this Agreement, either in this Agreement itself or in any such writings, shall be deemed to refer to and include the Agreement and all exhibits and writings. DATED effective the date first above written. DEVELOPER: By: Printed Name: Its: Address: Email Address: Phone Number: Project Name: Project Address: CITY: MILLCREEK ATTEST: By: By: Elyse Sullivan, City Recorder Jeff Silvestrini, Mayor ---PAGE BREAK--- Exhibit to Warranty Bond Agreement for [description of Property] ---PAGE BREAK--- Exhibit to Warranty Bond Agreement [Engineer’s Estimate of Improvements Cost and Description of Improvements]