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HomeMy WebLinkAboutR-2021-109 Escrow Agreement Related to the Streets in Skyline Townhomes RESOLUTION NO. R-2021- 109 A RESOLUTION APPROVING AN ESCROW AGREEMENT RELATED TO THE STREETS IN SKYLINE TOWNHOMES BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS: THAT the Agreement, attached hereto and incorporated herein, with Asphaltic Surfaces, LLC, Jacob Robbins, Jana Kay Soule, and Skyline Townhomes, LLC regarding escrows for street construction and maintenance in Skyline Townhomes, is approved, and the Mayor is authorized to sign the Agreement on behalf of the City; and FURTHER THAT the Mayor, the City Administrator, Finance Director, City Engineer, and other appropriate City officials are hereby authorized to take any and all actions as may be deemed necessary or convenient to carry out and comply with the intent of this Resolution and to execute and deliver for and on behalf of the City all certificates, instruments, agreements, and other documents, as may be necessary or convenient to perform all matters herein authorized. PASSED AND ADOPTED by the Board of Aldermen the S day of bCt44.4-, 2021. : � • Ka een L. Rose, Mayor ATTE;STa T; r r Robini'ricaici;City:Z1erk• yaw, - Srtl�ject to rrpprorul ht=Rh,ersirle Board uf'Ahlermen AGREEMENT This Agreement is entered into effective as of the date last cxccuted by all of the parties (the "Effective Date"), by and betA een the City of Riverside, Missouri, a city and political subdivision duly organized and existing under the laws of the State Of Missouri (the"City'), and Asphaltic Surfaces, LI-C a IMIssouri limited liability cprnpany (`Contractor") and Jacob Robbins, an individual ("Robbins"), and Jana Kai- Soule ("Soule"); and Skyline Towilhomes, LLC ("Skyline"). For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties aurce as follows: Background 1. Skyline has tiled a Major Subdivision Final Plat for Skyline Townhomes (the "Plat") with the City. Pursuant to the Plat, Skyline dedicated the street rights-of-way to the City, subject to the City's acceptance of the dedication. Tire City's acceptance of Skyline's dedication is conditioned oil construction of the streets in accordance with City standards. City Code required that the streets be constructed in accordance with Kansas City Chapter of the American .Public Works Association ("KCAPWA") standards. The streets' base course was not constructed according to the KCAPWA standards by Contractor— in that it was constructed with a mix type 1-01 instead of the required mix type 5-01. Contractor agrees and acknowledges that the City was not at fault for the incorrect mix type being used and did not act or fail to act in any manner to contribute to the incorrect mix type being used. 2. Skyline has requested that the City release the Plat for recording. The City will release the Plat if the Contractor provides financial security to the City as provided herein so that i) a 2" mill and overlay street maintenance technique and ii) full-depth reconstruction where needed as determined by the City Engineer in his sole discretion, can be utilized (the "Work") to maximize the streets' useful life following,substantial build-out of the development. Performance Securih, 3. Contractor will deposit with the City$40,000.00 ("Performance Deposit")in cash. After the City receives the Perfo.r.mance Deposit, the City will issue a certificate of final acceptance regarding the Plat's public improvements and release the Plat to Skyline for recording in Platte County,Missouri. The City shall retain any accrued interest fi•om the Performance Deposit. 4. after the City has determined that Skyline's townhorne project has surpassed 95°,o completion, the City shall send a written notice to proceed to Contractor (and the notice shall also identity any areas needing full-depth reconstruction as solely determined by the City Engineer). Contractor shrill then have 30 calendar days(Or Such longer time as may be specified in writing by the City Engineer if he determines in his sole discretion it is warranted based on weather conditions) ftoni the date of the written notice to Proceed to complete the Work. Contractor shall notify the City Engineer and City .administrator by email at least 48 hours before,it starts completing the Work with its start date. 1 Subject to approval 1yv Rire►- ide Board of AIdet-men 5. Contractor shall notify the City Engineer and City Administrator by email within 48 hours that it has completed the Work. The City Engineer shall inspect the Work to determine if it is satisfactory to the City. a. If the City Engineer determines the Work has been satisfactorily completed, the City shall return the Deposit to Contractor within fifteen (15) business days of the inspection of the Work, less $4,000.00 as reimbursement to the City for its costs incurred in connection with resolving the Work issue, and the Contractor agrees such amount is reasonable("City's Costs"). b. If the City Encnneer determines the Work has not been satisfactorily completed,the City Engineer shall notify Contractor of the additional requirements to satisfactorily complete the Work and Contractor shall,within fifteen(15)calendar days (or such longer time as may be specified in writing by the City .Engineer i.flie determines in his sole discretion it is warranted based on weather conditions), commence such cure to complete the Work without unnecessary delay, but in any event, the Work will be completed within 15 calendar days. The City Engineer shall then re-inspect the Wort. If the City Engineer determines the Work has been satisfactorily completed, the City shall return the Performance Deposit to Contractor within fifteen business (15) days of the inspection of the Work, less City's Costs. i_ If the City .Engineer determines the Work has not been satisfactorily completed, or has"not been commenced or completed within the timeframe set forth in either Section 4 or Section 5.b, then: 1. the City may complete the Work itself and shall be entitled to draw from the Performance Deposit the cost of such Work. Any portion of the Performance Deposit not used by the. City to complete the Work shall be returned to Contractor, less City's Costs. 2. if the Performance Deposit is not of a sufficient amount to complete the Work(which amount includes City's Costs),then the Contractor shall,within Five(5) business days of receiving written notice from the City, deposit with the City the necessary additional funds to complete the Work (including City's Costs). a. If Contractor fails to timely deposit the necessary additional Funds, the City may proceed with (lie Work using its own fiends and' the amount o'f the necessary additional funds (which amount includes City's Costs) shall constitute a debt against the Contractor, Robbins, and Soule, and the debt liability shall be joint and several. b. The City may recover.from Contractor, Robbins, and Soule the amount of necessary additional fiends (which amount includes City's Costs) that it needed to expend On its own to complete (lie Work by all action instituted in Platte County 2 Subject to approval lit.Riverside Boaril ref Aldermen Circuit Court, and, in such event, Contractor and Robbins and Soule shall pay all court costs and reasonable attorney fees incurred by the City in connection with such action. Maintenance Security 6. The City acknowledges receipt of$40,000.00 deposited by Skyline on September 22, 2021, for the maintenance purposes contained. in this Section ("N.laintenance .Deposit"). The City shall use the Maintenance Deposit, together with accrued interest thereon, if any, for repair and iaintenance of the streets within the Plat in accordance with the Cit_y's customary practices and schedules .for street maintenance and repair, as the City .Engineer may determine in his sole discretion. Any portion of the.Maintenance.Deposit not used by the City for the purposes described in this Section by October 1,2028, shall be returned to Developer. Generally A1212lic.able Provisions 7. This A-reement contains the entire agreenient between the parties relating to the matters covered hereby. Any oral representations or inodifications concerning this Agreement shall be of no force and effect. 8. This instrument shall bind and inure to the benefit of the respective parties, their personal representatives, successors, and assigns. 9. Contractor, Robbins,Soule, and Skyline all waive their rights to file any lawsuit or other proceeding to challenge the manner in which the City uses either the Performance Deposit or the Maintenance Deposit. 1.0, Contractor, Robbins, Soule, and Skyline agree that the City is entering this Agreement for the purpose of assisting in resolving the issue caused by Contractor's incorrect streets'base course construction. Based on the foregoing,Contractor, Robbins,Soule,and Skyline waive the right to recover from and fully and irrevocably release the City, and its officials, employees, and agents, from any and all losses, liabilities; claims, damages (including consequential damages), penalties, fines, forfeitures, costs and expenses (including attorney's fees),relating to the subicet matter of this Agreement that they may now have or hereafter acquire against.thc City, and its.officials, employees, and agents. 11. This Agreement shall be governed by and interpreted, construed, and enforced in accordance with the laws of the State of.Nlissouri. The parties hereto agree that any action at law, suit in equity, or other judicial proceeding arising out of this Agreement shall be instituted only in the Circuit Court of.Ptatte County,.Missouri or in federal court of the Western District of Missouri. 12, If anv one or more of the provisions of this Agreement is declared or adjudged by any court of competent jurisdiction to be unenforceable or unlawful,then each such unenforceable or unlawful provision shall be deemed excised here from, and the remainder of the Agreement, togctlier with all rights and remedies granted thereby, shall continue and remain in full force and effect. ry .S'iil�ject to alyworrtl kv Riverside.Board of Aldermen 13. This Agreement may be executed in several counterparts; and by the parties hereto on separate counterparts, and each counterpart, when so executed and delivered, shall constitute an original agreement, and all such separate counterparts shall constitute but one and the same agreement. 14. This Agreement shall not be deenred-to create any tliird=party benefit hereunder for any member of the public or to authorize anyone, not a party hereto, to maintain suit pursuant to the terms of this Agreement. 15. No presumption or inference against the City shall be made because of the City's preparation of this Agreement. 16. The rights and remedies under this .Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise. 17. With regard to references contained herein to the City.Engineer's determinations in his sole discretion, such discretion will not be exercised in an arbitrary or capricious manner. (Signalm-e Pages F olloi 4 .Subject to approral hv Riverside Board of Aldermen IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by themselves or by their authorized representatives. CITY OF RIVERSIDE, MISSOURI: Bv: Kat iccn L. Rose, Mayor Dated: &a. ATTEST: Robin Kincaid, City Clerk COUNTERSIGNED BY: CITY PUR GENT: By: Brian m strator Date 5 Subject to approval by Riverside Board of Aldermen Asphaltic Surfaces, LLC By: Title: 7 � Dated: �02 cob Robbins Dated: J 'Kay Soule Dated: 47 1,)-7 6 Subject to approval Irv.Rirervide.floarrf of'Aldermen Skyline Townhornes, LLC: Name: Brian \-lertz Title: t1lel Dated: 7 REQUEST FOR AT-RISK BUILDING PERMITS Comes now Skyline Townhomes,LLC("Skyline"),by and through Brian Mertz,a member with authority to bind it, and requests that the City of Riverside, Missouri issue it conditional, "at- risk" footings and foundation building permits for the townhome project contained in the Skyline Townhomes approved but not yet recorded plat. Skyline understands that the issuance of conditional, "at-risk" footings and foundation building permits is at its own risk and provides no assurances whatsoever that any additional building permits will be issued by the City until the Skyline Townhomes plat has been recorded. The plat has not been recorded due to issues related to the construction of the streets' base course. Skyline understands that the plat will be released for recording upon execution of an escrow agreement between the City- (subject to approval by the Board of Aldermen), Skyline, and Skyline's contractor. In the event that Skyline cannot obtain the necessary additional building permits for the townhome project, it will be Skyline's responsibility to return the site to its condition prior to commencement of construction. In consideration for the City issuing conditional,"at-risk"footings and foundation building permits, Skyline hereby agrees to hold the City of Riverside, its officials, employees and agents, harmless from any and all manner of actions, causes of action, suits, damages, judgments, executions, claims for personal injury or property damage, demands or losses of any kind whatsoever, in law or in equity, which may arise as a result of Skyline's commencement of construction prior to the recording of the plat, including,but not limited to, losses due to delays in obtaining additional building permits or certificates of occupancy resulting in part or all from the failure of the plat to be recorded. Skyline Townhomes, LLC By: Brian Mertz, Authori ed Member Dated: