2018-05-09 Set Agenda w-CC Packet

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4. For the guaranty of DEVELOPER's performance of all requirements hereinabove set forth, DEVELOPER and BANK agree that cash in the amount of$10,000.00 shall be held in escrow by the BANK and shall be available for payment to the MUNICIPALITY in accordance with the terms herein set forth. The funds in the escrow account shall not be diverted, applied, set off or disbursed except in accord with the terms hereof.The MUNICIPALITY shall be the sole beneficiary of the escrow account and shall have sole power to draw funds from the account, in accordance with the terms of this agreement. Nothing herein shall relieve the DEVELOPER from the obligation to pay any additional costs, if actual costs exceed the above-stated cost. Nothing herein shall relieve the DEVELOPER from the obligation to pay any additional costs, if actual costs exceed the amount retained in escrow, after the time of completion. 5. If the MUNICIPALITY files with the BANK a statement that the DEVELOPER is, in the judgment of MUNICIPALITY, in default under the terms of this Agreement,the BANK shall pay monies from said escrow fund to the MUNICIPALITY, in the amount(s) requisitioned by the MUNICIPALITY to complete the Improvements and satisfy the requirements in this Agreement. 6.The MUNICIPALITY will promptly submit to the DEVELOPER a copy of such statement as it files with the BANK.The consent of the DEVELOPER to payments by the BANK to the MUNICIPALITY shall not be required or solicited. 7.The MUNICIPALITY shall not file with the BANK a statement of default until ten (10) days after notice has been sent by it to the DEVELOPER by certified mail, return receipt requested, setting forth its intention to do so. 8. All monies released by the BANK to the MUNICIPALITY pursuant to Paragraph 4 shall be used by the MUNICIPALITY solely for the purpose of performing obligations imposed upon the DEVELOPER by that portion of this Agreement upon which the DEVELOPER is then in default. Any work to be performed by the MUNICIPALITY pursuant hereto shall be let on a contractual basis, or on a time and material basis or shall be performed by the MUNICIPALITY with its own work force and equipment or shall be accomplished in such a manner as in the judgment of the MUNICIPALITY shall accomplish the work most expeditiously and economically. 9. If monies are released by the BANK to the MUNICIPALITY pursuant to Paragraph 4 and it shall later develop that a portion of the released monies are surplus to the MUNICIPALITY's needs, any such surplus shall be returned by the MUNICIPALITY to the BANK to be held and distributed by the BANK pursuant to the terms of this Agreement. 10.TERMINATION a.The City shall return any unused escrow moneys at such time at the terms of Paragraph 2(b) come into force. b.This Agreement shall terminate and shall be of no force or effect upon performance of all requirements contemplated hereby, and the completion of the Warranty Period set forth in Paragraph 2. 35