1. Incorporation. The foregoing recitals, all exhibits attached hereto, and all data the City uses to compute the cost or govern the design and completion of the Sidewalk Improvements, including City Code, are incorporated by reference.
2. Additional Definitions.
   1. “Failure to Perform” or “Fail to Perform” shall mean a party’s failure to perform any obligation required under this Agreement, City ordinance, or other applicable law in a timely and complete manner. In addition, Applicant’s Failure to Perform shall also include: (i) abandonment of the Project as determined by City; (ii) Applicant’s insolvency, appointment of a receiver, or filing of a voluntary or involuntary petition in bankruptcy; (iii) the commencement of a foreclosure proceeding against the Project property; or (iv) conveyance of the Project or property in lieu of foreclosure.
   2. “Incidental Costs” shall mean engineering and architect fees, administrative expenses, court costs, attorney fees, insurance premiums, mechanic’s liens, and any other expense, including interest thereon, the City incurs as a result of Applicant’s Failure to Perform.
   3. “Warranty Commencement Date” shall mean the date the City accepts the Project.
   4. “Warranty Period” shall mean the period between the Warranty Commencement Date and one (1) year thereafter.
3. Purpose for Agreement. The Parties expressly acknowledge that the purpose of this Agreement is to guarantee the proper completion of the Sidewalk Improvements and, among other things, to eliminate and avoid the harmful effects of unauthorized subdivisions and other land developments.
4. Completion and Compliance. Applicant shall complete the Sidewalk Improvements within a period of two (2) years from the Effective Date or, if this Agreement covers improvements required in a subdivision, two (2) years from the date of recording the final subdivision plat. Construction shall comply with:
   1. the approved development plan, preliminary and final approved site plan(s) and preliminary and final approved subdivision plat(s) for the Project, as applicable;
   2. the approved engineering drawings, conveyance documents, title reports and other documents submitted during the City’s review and approval process of the Project;
   3. any and all agreements including but not limited to the development agreement, deferral agreement, and other agreements for the Project, as applicable;
   4. all applicable federal, state and local laws and regulations; and
   5. the City Public Improvement Standards, Specifications and Plans (collectively “Compliance Requirements”).
5. Specific Enforcement. City shall be entitled to specifically enforce Applicant’s obligations under this Agreement in a manner satisfactory to City. City shall also be entitled to specifically enforce Financial Institution’s own performance to remit payment as required by this Agreement up to the amount of the Proceeds without any further consent or instruction from Applicant.
6. Applicant’s Cost Obligations.
   1. Should Applicant Fail to Perform, Applicant shall compensate City for all costs, including but not limited to, cost of construction and Incidental Costs resulting from Applicant’s Failure to Perform, except to the extent that the City has received compensation for such costs from the Proceeds, as defined herein.
   2. Applicant expressly acknowledges, understands, and agrees that its obligation to complete and warrant the Sidewalk Improvements and fulfill any other obligation under this Agreement, City ordinances, or other applicable law, is independent of any obligation or responsibility of City, either express or implied.
   3. Applicant acknowledges and agrees that its obligation to complete and warrant the Sidewalk Improvements is not and shall not be conditioned upon the commencement of actual construction work in the subdivision or development or upon the sale of any lots or part of the subdivision or development.
   4. Applicant acknowledges and agrees that: (i) Applicant’s contractual obligation to complete and warrant the Sidewalk Improvements pursuant to this Agreement is independent of any other remedy available to City to secure proper completion of the Sidewalk Improvements; and (ii) Applicant may not assert as a defense that City has remedies against other entities or has other remedies in equity or at law that would otherwise relieve Applicant of its duty to perform as outlined in this Agreement or preclude City from requiring Applicant’s performance under this Agreement; and (iii) Applicant has a legal obligation, independent of this Agreement, to timely complete and pay for the Sidewalk Improvements in full.

8. System Reductions.
   1. There will be no warranty reductions for Sidewalk Improvement Assurance.
   2. Sidewalk Improvements are a single system category.
   3. Sidewalk Improvements may only be released after one hundred percent (100%) of the Sidewalk Improvements are complete.
9. Warranty and Maintenance of Sidewalk Improvements.
   1. Applicant hereby unconditionally warrants that the Sidewalk Improvements shall remain free from defects in materials, workmanship, or design such that the Sidewalk Improvements continue to meet the Compliance Requirements throughout the Warranty Period and the Applicant shall be responsible for the repair and replacement of all defective improvements.
   2. After all Sidewalk Improvements for the Project are complete, Applicant shall request, in writing, a City inspection (“Warranty Inspection”). City shall perform the Warranty Inspection within fifteen (15) calendar days and shall provide Applicant a written list of substandard or defective conditions that require completion or repair (“Punch List”). The Punch List shall be completed within forty-five (45) calendar days after it is provided by the City. If Applicant fails to complete and repair the Punch List items within forty-five (45) days or a written request for reinspection or certificate of completion is not submitted: (i) Applicant shall be responsible for the cost of each additional inspection and preparation of additional Punch Lists; (ii) the City shall not accept Sidewalk Improvements, the Warranty Period shall not commence, and the Applicant will remain responsible for all cost and expense of repairing the improvements, including, without limitation, administrative costs, labor and materials costs; (iii) the Applicant shall be responsible for all additional deterioration and damage caused by the failure to timely correct defective conditions or request the reinspection; and (iv) the City shall have the right to the Proceeds for incomplete, unsatisfactory, or defective items.
   3. The Warranty Period shall commence on the date of Sidewalk Improvement Acceptance.
   4. During the Warranty Period, it will be the City’s obligation to provide maintenance of the Sidewalk Improvements.
10. Final Release of Proceeds.
    1. Final Release shall occur only after completion of the applicable Warranty Period, inspection, and the City’s verification that the Sidewalk Improvements have been installed and repaired to the satisfaction of City. Final Release shall be evidenced in writing by the West Jordan City Administrator (or assigned designee).
    2. Applicant may request a City inspection (“Final Inspection”) upon completion of the Warranty Period for Sidewalk Improvements. City shall perform the Final Inspection within fifteen (15) calendar days of receiving the request and shall provide Applicant a written list of substandard or defective conditions that require completion or repair (“Final Punch List”). Applicant shall have forty-five (45) calendar days from issuance of the Final Punch List to complete and repair the Final Punch List items, at which time City will conduct a re-inspection. If Applicant fails to complete and repair the Final Punch List items within forty-five (45) days or a written request for reinspection or certificate of completion is not submitted: (i) Applicant shall be responsible for the cost of each additional inspection and preparation of additional corrections lists; (ii) Applicant shall be responsible for all additional deterioration and damage caused by the failure to timely correct defective conditions or request the reinspection; and (iii) the City shall have the right to the Proceeds for incomplete, unsatisfactory, or defective, items.
11. Use of Proceeds. In the event the Sidewalk Improvements are not installed to the satisfaction of City, the Punch List items or Final Punch List items are not timely completed, or Applicant otherwise Fails to Perform, City may use and expend all the Proceeds, or such lesser amount as may be necessary, to complete and repair the Sidewalk Improvements.
    1. The cost of completion shall include, but not be limited to, construction costs and any Incidental Costs incurred by City in completing and repairing the Sidewalk Improvements.
    2. If the Proceeds are inadequate to reimburse the City for the cost of completion, for whatever reason, including previous system reductions, Applicant shall be responsible for the deficiency independent of the financial assurance. Additionally, no further permits or business licenses shall be issued, and City may immediately pursue any and all remedies provided for under applicable law for failure to comply, including suspension or revocation of any existing permits or business licenses.
    3. Should City elect to use the Proceeds to complete and repair the Sidewalk Improvements, Applicant herein expressly grants to City, and any contractor or other agent hired by City, the right of access to the Project property in order to complete and repair all of the Sidewalk Improvements.
12. Applicant Indemnification and Insurance.
    1. Applicant agrees to indemnify, defend, and hold harmless City, its officers, employees, agents, and volunteers from and against all claims, liabilities, actions, causes of action, suits, demands, warranties, rights, losses, damages, punitive damages, costs, expenses, attorney fees, and compensation of any kind and nature whatsoever, and whether known or unknown, foreseen or unforeseen, and whether based on tort, strict liability, warranty, contract, statute, common law, or other theory which any individual or entity now has or which may hereafter accrue on account of, resulting from, or in any way arising out of the installation and maintenance of the Sidewalk Improvements prior to Final Acceptance. Applicant further expressly agrees to indemnify, defend, and hold harmless City, its officers, agents, employees, and volunteers from all claims, liabilities, actions, causes of action, suits, demands, warranties, rights, losses, damages, punitive damages, costs, expenses, attorney fees, and compensation of any kind and nature whatsoever, and whether known or unknown, foreseen or unforeseen, and whether based on tort, strict liability, warranty, contract, statute, common law, or other theory which any individual or entity now has or which may hereafter accrue on account of, resulting from, or in any way arising out of the work of any contractor or agent hired by City to install, complete, or remedy any defect in or damage to the Sidewalk Improvements.
    2. Should City elect to install, complete, or remedy any defect in or damage to the Sidewalk Improvements, Applicant shall be responsible for the payment of the premium for any insurance policy covering liability, damage, loss, judgment, or injury to any person or property, including, but not limited to, damage to Applicant or its property as a result of the work of any contractor or agent hired by City to complete or remedy the Sidewalk Improvements. The minimum dollar amount and the scope of coverage of the insurance policy shall be determined and set by City. Applicant shall indemnify, defend, and hold harmless City, its officers, employees, and agents for any liability which exceeds the insurance policy limit. City, at its option, may collect and expend the Proceeds to pay insurance premiums should Applicant fail to do so. The City may not issue permits, approvals, or business licenses and may suspend any existing permit, approval, or business license until due or past due premiums are paid and financial assurance is in place to cover subsequent payments.
    3. Nothing in this Agreement shall be construed to relieve Applicant of any obligations imposed on Applicant by applicable law. It is the intent of the Parties that this Agreement serve as a complete release and waiver by Applicant of any and all claims Applicant has or may claim to have with respect to the City’s application of the City Code to the Project or the imposition of any requirement expressly set forth in this Agreement. Moreover, Applicant hereby releases and waives any and all claims Applicant may have against the City with respect to any land use application submittals, acceptances, approvals, denials or processing with respect to the Project occurring prior to the Effective Date.
13. No Third-Party Beneficiaries. The benefits and protection provided by this Agreement shall inure solely to City and not to third parties, including, but not limited to, lot purchasers, contractors, subcontractors, laborers, suppliers, or others. City and Financial Institution shall not be liable to claimants or others for obligations of Applicant under this Agreement. City shall further have no liability for payment of any costs or expenses of any party who attempts to make a claim under this Agreement and shall have under this Agreement no obligation to make payments to, give notices on behalf of, or otherwise have obligations to any alleged claimants under this Agreement.

14. Successors and Assigns. This Agreement will be binding on and inure to the benefit of the Parties, and, where applicable, their respective parents, subsidiaries, divisions, officers, directors, owners, associates, predecessors, successors, heirs, assigns, agents, partners, employees, insurers, and representatives.
15. Integration Clause. This Agreement contains the entire agreement between the Parties relating to the Sidewalk Improvements and supersedes all previous negotiations, discussions, or agreements between the Parties, and no evidence of any prior or other release shall be permitted to contradict or vary the terms hereof. This Agreement may not be modified, except in writing signed by all Parties.
16. Severability Clause. In the event any provision of this Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity of any other provision hereof and this Agreement shall be construed as if such invalid or unenforceable provision were not contained herein provided that the agreement as so modified preserves the basic intent of the Parties.
17. Construction of Agreement. This Agreement will be construed as a whole in accordance with its fair meaning and in accordance with the laws of the state of Utah. The Parties acknowledge that they have read this Agreement and are fully aware of its content and its legal effect. The terms of this Agreement have been negotiated by the Parties and their respective legal counsel. Accordingly, the terms of this Agreement may not be construed in favor of or against any Party. The headings used in this Agreement are for reference only and may not affect the construction of this Agreement.
18. Non-waiver. The failure by any Party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy consequent upon a Failure to Perform thereof shall not constitute a waiver of any such Failure to Perform or any other covenant, agreement, term, or condition. No waiver shall affect or alter the remainder of this Agreement, but each and every other covenant, agreement, term, and condition hereof shall continue in full force and effect with respect to any other then existing or subsequently occurring Failure to Perform.
19. Authority. By executing this Agreement, each Party represents that such Party has the right, legal capacity, power, and authority to enter into this Agreement and to perform the obligations set forth in this Agreement without the consent, approval, or authorization of any person, entity, tribunal, or other regulatory or governmental authority. The execution of this Agreement by the Parties, the performance by the Parties of their obligations under this Agreement, and the transactions contemplated by this Agreement do not require any further action by or consent of any third party.
20. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, all of which together shall constitute one and the same instrument. Any copy, facsimile, electronic, or other non-original duplication of an original signature of this Agreement shall be deemed an original for purposes of the enforcement or establishment of the validity or authenticity of this Agreement.

Applicant acknowledgment — complete the applicable section and fill in all underlined fields.

On this day , personally appeared before me, , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the forgoing instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

Financial institution acknowlegment — complete the applicable section and fill in all underlined fields.

On this day , personally appeared before me, , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the forgoing instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.