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HomeMy WebLinkAbout0104 Bowdoin Street - Landscaping - 6/3/2014Jul 03 14 01:39p Civil Engineering 802-864-2271 p.1 SITE PLAN LANDSCAPING LETTER OF CREDIT AGREEMENT THIS AGREEMENT, executed in triplicate between Super -Temp Realty, LLC , hereinafter referred to as "DEVELOPER", , hervinaftur referred to as "BANK", and the City of South Burlington, herein after referred to as "MUNICIPALITY". WITNESSETH: WHEREAS, DEVELOPER has received final plat approval No. SDA 3-39 dated Feb 28, 2014 from the MUNICIPALITY's Development Review Board for the development of a subdlvislon consisting of 1 _ lots with related improvements, in a development to be known as "_Super -Temp Realty, LLC as depicted on and in accordance with the specifications as set forth on the final plat entitled " New Manufacturing Facility, Site Imp dated November, 2013, last revised (None) prepared by ivi ng near ng ssoc ates, Inc. , and recorded at Map Slide of the Land Records of the City of South Burlington (the "Final Plat" herein) and as depicted on and in accordance with the specifications as set forth on a site plan entitled "_Landscape Plan Sheet L-1 and L-2 dated September, 2013 last revised 12-27-13 prepared by Michael Lawrence Associ; (the "Site Plan" herein): WHEREAS DEVELOPER is required by said approvals, at its own expense, to complete the construction of the development site in accordance with the plans approved by the Development Review Board; WHEREAS the parties to the Agreement wish to establish a mechanism to secure the obligations of the DEVELOPER for the work as set forth below: and WHEREAS the BANK executes this Agreement solely in the capacity of issuer of a Letter of Credit hereinafter specified. NOW, THEREFORE, the parties hereby covenant and agree as follows 1. DEVELOPER will, at its own expense, complete the following installation as depicted and in accordance with the specifications set forth in the Site Plan and related documents: L-1 Super -Temp Realty, LLC Landscaping Plan 9113 last rev 12-27-13 b L-2 Super -Temp Realty, LLC Landscaping Details 9/13 last rev 12-27-13 2. DEVELOPER shall replace or repair any defective or improper work or materials which may be identified as such by the MUNICIPALITY within three (3) years after completion of the improvements set forth in Paragraph 1 by the MUNICIPALITY (hereinafter the "Warranty Period"). For the purpose of this Agreement "completion" shall be deemed to have occurred when the Municipality has Inspected and approved the installation of the Improvements and issued written notice to the Developer that the installation thereof is complete- 3- Upon "completion," the CITY shall provide DEVELOPER and BANK written notice of completion. 4. For the guarantee of DEVELOPER's performance of all requirements hereunder set forth, DEVELOPER has caused the BANK to issue its Irrevocable Letter of Credit in favor of the MUNICIPALITY, the original of which is attached to the MUNICIPALITY's copy of this Agreement, and a copy of which is attached to the DEVELOPER's copy of this Agreement. During the term of this Agreement, DEVELOPER shall cause the attached Letter of Credit to be renewed at least thirty (30) days before the maturity date thereof. Jul 03 14 01:3810 Civil Engineering 802-864-2271 p,2 Failure of the DEVELOPER to deliver evidence of such renewal to MUNICIPALITY thirty (30) days prior to the date of expiration of said Letter of Credit shall constitute a default of the terms of this Agreement. 5. Said Irrevocable Letter of Credit provides that the drafts drawn under said Letter of Credit must be accompanied by a written statement signed by a duly authorized agent of the MUNICIPALITY, stating that in the judgment of the MUNICIPALITY, the DEVELOPER is in default under the terms of this Agreement, and that the funds to be drawn pursuant to the draft are in payment for, or in anticipation of payment for materials, labor and services required for completion of the Improvements, or the repair or replacement thereof. Payment of each draft will be made at sight when presented to the BANK by the MUNICIPALITY, the payment limited only by the aggregate amounts presented in relationship to the maximum amount of the Letter of Credit. If DEVELOPER shall be In default of this Agreement for seven (7) days because of its failure to provide evidence of renewal of the Letter of Credit, required in paragraph 4 above, MUNICIPALITY may notify BANK of such default and request payment of the remaining balance available on said Letter of Credit. Such notice shall be provided in accordance with Paragraph 5, above, with the exception that the MUNICIPALITY shall be under no obligation to provide a statement that the funds to be drawn are in payment for, or in anticipation of payment for materials, labor and services required for completion of the Improvements, or the repair or replacement thereof. All funds drawn pursuant to this paragraph shall be held in escrow by the MUNICIPALITY for the remaining duration of this agreement. At the termination of this Agreement, the MUNICIPALITY shall refund all remaining amounts held in escrow, less any funds retained in payment for, or in anticipation of payment for materials, labor and services required for completion of the Improvements, or the repair or replacement thereof. In the event any funds are withheld by MUNICIPALITY, it shall provide DEVELOPER with a written statement stating that the retained funds were retained in payment for, or in anticipation of payment for materials, labor and services required for completion of the Improvements, or the repair or replacement thereof. 7. The DEVELOPER and MUNICIPALITY hereby agree that the sum of Twenty Seven thousand three hundred seve($ 27,372.00 ) shall be sufficient to secure DEVELOPER'5 obligations under this Agreement but shall not relieve 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 secured by the Irrevocable Letter of Credit, after the time of completion. 8. The MUNICIPALITY will promptly submit to the DEVELOPER a copy of any draft it submits to the BANK. The consent of the DEVELOPER to payment of said draft by BANK to the MUNICIPALITY under said Letter of Credit shall not be required. 9. 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. 10. All funds drawn on the BANK by the MUNICIPALITY pursuant to the Letter of Credit shall be used solely by the MUNICIPALITY for the purpose of completing construction of the Improvements or the repair or replacement thereof. Any work contracted for 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's own work force and equipment, or shall be accomplished in such other manner as in the judgment of the MUNICIPALITY shall accomplish the work more expeditiously and economically, Jul 03 14 01:39p Civil Engineering 802-864-2271 p.3 consistent with good construction practices. 11. If payments are made by the BANK to the MUNICIPALITY pursuant to said Letter of Credit, and it later develops that a portion of the monies drawn are In excess of the MUNICIPALITY's needs, any such excess amount shall be refunded by the MUNICIPALITY to the BANK, to be credited by said BANK to the Letter of Credit. 12. This Agreement and said Letter of Credit shall terminate and shall be of no force and effect upon completion of the Warranty Period described in Paragraph 2, above. If the MUNICIPALITY has not delivered any written notice to the DEVELOPER of any defective or improper work or materials related to the Improvements within the Warranty Period, or if notice has been given and the defective work or materials have been corrected by the DEVELOPER to the reasonable satisfaction of the MUNICIPALITY, the MUNICIPALITY shall forthwith notify the BANK in writing that the Letter of Credit may be cancelled, and shall return the original Letter of Credit to the BANK, and the DEVELOPER shall be released from all obligations hereunder. 13. The BANK may not modify the Letter of Credit without first receiving written consent to the modification by the MUNICIPALITY. 14. DEVELOPER hereby agrees to indemnify and hold BANK harmless from all claims, causes of action or liability of any kind arising out of this Agreement or the issuance by BANK of this Letter of Credit, including attorney's fees, as long as BANK follows the terms and conditions outlined in said Letter of Credit. 15. This agreement shall be binding on all parties hereto and their respective heirs, executers, administrators, successors, and assigns. DATED at South Burlington , Vermont, this 3rd day of 20 14, L IN THE PRESENCE OF: By. ,. Wiineffiv D ly Auth rized Agent IN THE PRESENCE OF: 1 By. Witness Duly Authorized Agent ;NTT CITY OF SOUTH BURLINGTON B Du y A orized Agent SON10-022 5-14-10 FORM LANDSCAPING LOC AGR 5114/10 '1520' merchants �BANK IRREVOCABLE LETTER OF CREDIT Borrower: Super -Temp Realty Company, Inc. Lender: Merchants Bank P.O. Box 277 Kennedy Drive Winooski, VT 05404 275 Kennedy Drive South Burlington, VT 05403 Beneficiary: City of South Burlington 575 Dorset Street South Burlington, VT 05401 NO.: 1160105688 EXPIRATION DATE. This letter of credit shall expire upon the earlier of the close of business on 06-03-2017 and all drafts and accompanying statements or documents must be presented to Lender on or before that time, or the day that Lender honors a draw under which the full amount of this Letter of Credit has been drawn (the "Expiration Date"). AMOUNT OF CREDIT. Lender hereby establishes at the request and for the account of Borrower, an Irrevocable Letter of Credit in favor of Beneficiary for a sum of Twenty-seven Thousand Three Hundred Seventy-two & 00/100 Dollars ($27,372.00) (the "Letter of Credit"). These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's address indicated above (or other such address that Lender may provide Beneficiary in writing) during regular business hours and accompanied by the signed written statements or documents indicated below. WARNING TO BENEFICIARY: PLEASE EXAMINE THIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS REQUIREMENTS, EITHER SINGLY OR TOGETHER, YOU SHOULD CONTACT BORROWER IMMEDIATELY TO SEE IF THE LETTER OF CREDIT CAN BE AMENDED. OTHERWISE, YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURE TO COMPLY STRICTLY WITH ITS TERMS AS WRITTEN. DRAFT TERMS AND CONDITIONS. Lender shall honor drafts submitted by Beneficiary under the following terms and conditions: Drafts under this credit must be marked, "Drawn under Merchants Bank, 275 Kennedy Drive, South Burlington, VT 05403, IRREVOCABLE LETTER OF CREDIT NUMBER 1160105688, dated June 3, 2014" and the amount and date of negotiation of each draft must be endorsed on the Endorsements of Drafts Drawn section of the Irrevocable Letter of Credit hereof by the negotiating bank. Upon Lender's honor of such drafts, Lender shall be fully discharged of Lender's obligations under this Letter of Credit and shall not be obligated to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has been drawn. Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other document which complies strictly with this Letter of Credit, and which on its face appears otherwise in order but which is signed, issued, or presented by a party or under the name of a party purporting to act for Beneficiary, purporting to claim through Beneficiary, or posing as Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit, Lender makes no representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary, or any other person, for any amount paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by Beneficiary of the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not and will not present upon the other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds received by Beneficiary in excess of the Letter of Credit's maximum drawing amount. USE RESTRICTIONS. All drafts must be marked "DRAWN UNDER Merchants Bank IRREVOCABLE LETTER OF CREDIT NO. 1160105688 DATED 06-03-2014," and the amount of each draft shall be marked on the draft. Only Beneficiary may complete a draft and accompanying statements or documents required by this Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any draft drawn hereunder. Partial draws are permitted under this Letter of Credit. Lender's honor of a partial draw shall correspondingly reduce the amount of credit available under this Letter of Credit. Following a partial draw, Lender shall return this original Letter of Credit to Beneficiary with the partial draw noted hereon; in the alternative, and in its sole discretion, Lender may issue a substitute Letter of Credit to Beneficiary in the amount shown above, less any partial draw(s). PERMITTED TRANSFEREES. The right to draw under this Letter of Credit shall be nontransferable, except for: A. A transfer (in its entirety, but not in part) by direct operation of law to the administrator, executor, bankruptcy trustee, receiver, liquidator, successor, or other representative at law of the original Beneficiary; and B. The first immediate transfer (in its entirety, but not in part) by such legal representative to a third party after express approval of a governmental body (judicial, administrative, or executive). TRANSFEREES REQUIRED DOCUMENTS. When the presenter is a permitted transferee (i) by operation of law or (ii) a third party receiving transfer from a legal representative, as described above, the documents required for a draw shall include a certified copy of the one or more documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary. COMPLIANCE BURDEN. Lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of this Letter of Credit precisely as written. Beneficiary understands and acknowledges: (i) that unless and until the present wording of this Letter of Credit is amended with Lender's prior written consent, the burden of complying strictly with such wording remains solely upon Beneficiary, and (ii) that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval of such wording. NON-SEVERABILITY. If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental body having jurisdiction, Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio, and both Lender and Beneficiary shall be restored to the position each would have occupied with all rights available as though this Letter of Credit had never occurred. This non-severability provision shall override all other provisions in this Letter of Credit, no matter where such provision appears within this Letter of Credit. IRREVOCABLE LETTER OF CREDIT Loan No: 1160105688 (Continued) Page 2 GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of Vermont without regard to its conflicts of law provisions, and except to the extent such laws are inconsistent with the 2007 Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce, ICC Publication No. 600. This Agreement has been accepted by Lender in the State of Vermont. EXPIRATION. Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored if presented to Lender on or before the Expiration Date unless otherwise provided for above. Dated: June 3. 2014 LENDER: MERCHANTS BANK By: X z4e Au orized Signer ENDORSEMENT OF DRAFTS DRAWN: Amount Amount Date Negotiated By In Words In Figures LASER PRO L—ft. Vag. 14.1.0.009 Co Harland Financial Solutions. Inc. 1997. 2014. 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