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Home My WebLink About0000 Community Drive - Infrastructure - 5/15/2008Page 2 of 3 Kimberly L. Brown, Accounting Assistant ReArch Company 30 Community Drive - Suite #8 South Burlington, VT. 05403 Phone:802-863-8727 Ext212 Fax:802-863-8734 E-Mail: kimbCo)rearchcompany com Website: www.rearchcomoany.com From: ray [mailto:rbelair@sburl.com] Sent: Friday, March 04, 2011 7:57 AM To: Kim Brown Subject: RE: Technology Park Escrow Kim, Are you referring to only the one you highlighted in yellow or all of them? Ray Belair Administrative Officer City of So. Burlington 802-846-4106 From: Kim Brown [mailto:Kimb@rearchcompany.com] Sent: Thursday, March 03, 2011 3:05 PM To: ray Subject: RE: Technology Park Escrow Im Below are the escrow projects, values, agreement dates, and balances at the end of 2010. Please let me know when we can anticipate each of these being released? If you have any additional questions please let me know. Escrow Reason Project Name / Number Total Value of Agreement Escrow Paid Escrow (If Applicable) Escrow Date to Date Balance Bike $ $ path of Kimball Avenues �� $ 70,000.00 5/15/2008 63,000.00 7,000.00 Community Drive Expansion $ 1,700,000.00 10/20/2007 1,530,000.00 170,000.00 Construct "Community Way" $ 805,000.00 10/20/2007 805,000.00 p $ Install Street Trees on Community Drive ,. 55,000.00 Lot 8B, 45 Commty $ $ Install Street Trees on Community Drive Drive $ 1,455.00 5/15/2009 1,455.00 Lot 11, 35 Community $ $ Install Street Trees on Community Drive Drive $ 1,455.00 5/15/2009 1,455.00 Lot 12, 25 Community $ $ Install Street Trees on Community Drive Drive $ 1,455.00 5/15/2009 - 1,455.00 Lot 13, 15 Community $ $ Install Street Trees on Community Drive Drive $ 1,455.00 5/15/2009 1,455.00 Thank you for all of your help getting these sorted out. Best Regards. Kimberly L. Brown, Accounting Assistant ReArch Company 30 Community Drive - Suite #8 South Burlington, VT. 05403 Phone: 802-863-8727 Ext 212 Fax:802-863-8734 E-Mail: kimb rearchcompany.com Website: www.rearchcompany.com From: ray [mailto:rbelair@sburl.com] Sent: Thursday, March 03, 2011 11:23 AM 3/10/2011 Page 1 of 3 ray From: Kim Brown [Kimb@rearchcompany.com] Sent: Thursday, March 10, 2011 11:01 AM To: ray Cc: Christa Vandevord Subject: RE: Technology Park Escrow Ray, All of this makes sense. Thank you for looking into this and getting back to me. I have added a calendar item to follow up with you regarding the utility cabinet escrows in May of 2014. Please address the release letter to: Christa Vandevord ReArch Company Technology Park 30 Community Drive Suite 8 South Burlington, Vermont 05403 Christav rearchoom aanny.com 802-863-8727 ext 211 Thank you again and best regards, Kim Kimberly L. Brown, Accounting Assistant ReArch Company 30 Community Drive - Suite #8 South Burlington, VT. 05403 Phone: 802-863-8727 Ext 212 Fax:802-863-8734 E-Mail: kimb@rearchcompany.com Website: wwwrearch_company.com From: ray [mailto:rbelair@sburl.com] Sent: Thursday, March 10, 2011 10:35 AM To: Kim Brown Subject: RE: Technology Park Escrow Hi Kim, I will release the following escrows: 1. Bike Path along Kimball Ave. 2. Community Drive Expansion 3. Install Street Trees on Community Drive. can not release the construct "Community Way" escrow since this street is not yet built. This escrow must continue to be maintained. The 4 remaining escrows are for utility cabinets which must remain in place for 3 years which will not expire until the middle of May. Please remind me then and I will have our City Arborist check the condition of the landscaping and if OK, will release these escrows. Who do you want me to address the release letters to? Ray Belair Administrative Officer City of So. Burlington 802-846-4106 From: Kim Brown [mailto:Kimb@rearchcompany.com] Sent: Friday, March 04, 2011 8:21 AM To: ray Subject: RE: Technology Park Escrow i am seeking an update on all of the ones listed. My apologies for the confusion Thank you, 3/10/2011 Page 3 of 3 To: Kim Brown Subject: RE: Technology Park Escrow Hi Kim, Could you remind me which open escrow agreements we are talking about? Thanks. Ray Belair Administrative Officer City of So. Burlington 802-846-4106 From: Kim Brown [mailto:Kimb@rearchcompany.com] Sent: Thursday, March 03, 2011 10:36 AM To: ray Subject: Technology Park Escrow Good Morning Ray, When last we talked you were going to look into anticipated release dates for the open escrow agreements between Technology Park and the City of South Burlington. However, you were waiting for information from another person in your office. What is the status of this obtaining this information? I would like to get our records up to date. Thank you, Kimberly L. Brown, Accounting Assistant ReArch Company 30 Community Drive - Suite #8 South Burlington, VT. 05403 Phone: 802-863-8727 Ext 212 Fax: 802-863-8734 E-Mail: kimb(a)rearchoompany.com Website: www.mamhcomoany.com 3/10/2011 ESCROW AGREEMENT c stir i T� �- l in triplicate by and between Tec Um A 4b h loper," the City of South Burlingt a�"! "0 enden Bank, hereinafter referred t WITNESSETH: WHEREAS, Developer has received approval from the Municipality's Development Review Board for the development of property located at Technology Park pursuant to the Final Plat Application No. SD-07-65, Findings of Fact and Decision, dated November 20, 2007 (the "Development Approval"), as depicted on and in accordance with the specifications as set forth on Sheet PP6 in plans and specifications titled "Technology Park Subdivision, South Burlington, Vermont," prepared by Trudell Consulting Engineers, dated September 24, 2007 and last revised February 25, 2008 (the "Plans and Specifications"). WHEREAS, Developer is required by said approval, at its own expense, to complete certain improvements; and WHEREAS, the parties to this Agreement wish to establish an escrow account to secure the obligations of the Developer as set forth in the Development Approval; and WHEREAS, the Bank executes this Agreement solely in the capacity of escrow agent. NOW THEREFORE, the parties hereby covenant and agree as follows: 1. Developer will, at its own expense, complete the following construction as depicted and in accordance with the specifications set forth in the Plans and Specifications and related documents: As mandated in Condition Twelve and the first paragraph on page 7 of the Development Approval, construct "Community Way," an approximately 800-foot long, 30-foot wide (with curbing) dead end cul-de-sac to serve Lots 9, 10, and 11, as depicted in the Plans and Specifications (the "Improvements"). Construction of the Improvements shall include all related private and municipal utilities, including a planned sewage pump station. 2. The Developer shall complete the Improvements no later than six (6) months from the date of the Certificate of Occupancy for any building to be constructed on Lots 9, 10, or 11, as provided in Condition Twelve and the first paragraph on page 7 of the Development Approval. 3. Developer shall replace or repair any defective or improper work or materials related to the Improvements which may be identified by the Municipality within two (2) years after completion of the Improvements. For the purpose of this Agreement "completion" shall be deemed to have occurred when the Municipality has inspected and approved the construction of the Improvements and issued written notice to the Developer that the construction thereof is complete. 4. For the guaranty of Developer's performance of all requirements hereinabove set forth, and prior to the issuance of any zoning permit for the work described above in Paragraph 1, Developer and Bank agree that cash in the amount of $805,000 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 $805,000. In addition, upon "completion," as defined above in Paragraph 3, the sum required to secure Developer's obligations under this Agreement will be reduced to $80,500 and the bank may withdraw from the escrow account $724,500 and may pay the same to Developer or to Developer's order. 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. The Bank shall incur no liability to the Developer on account of making such payment to the Municipality, nor shall the Bank be required to inquire into the propriety of any claim by the Municipality of default on the part of the Developer or into the use of such funds by the Municipality in completing such Improvements. 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. All monies released by the Bank to the Municipality pursuant to Paragraph 5 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 2 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 5 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. The Bank will not refuse or delay to make such payments to the Municipality when requested by the Municipality by an appropriate statement, and Developer will not interfere with or hinder such payments by the Bank to the Municipality. Said statement shall contain a certificate of compliance with the notice requirements of Paragraph 7 of this Agreement. 11. 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 3. 12. Following the disbursement contemplated in Paragraph 4, the sum of $80,500 shall be maintained in escrow until certification to the Bank by the Municipality of the completion of the warranty period set forth in Paragraph 3 or until Bank is instructed, in writing, by Municipality to disburse some or all of that sum to Municipality, at which time Bank shall pay monies from the escrow account as instructed by the municipality. 13. This Agreement shall not only be binding upon the parties hereto, but also their respective heirs, executers, administrators, successors, and assigns. 14. In the event that Developer furnishes Municipality with a Letter of Credit, in form and substance satisfactory to Municipality, as replacement security for the funds escrowed hereunder, and the Municipality concludes that it is beneficial to the Municipality to do so, the Municipality will release the escrowed funds and accept the Letter of Credit, provided the Bank reconfirms, in writing its commitment to the terms and conditions contained herein. 15. Bank as Escrow Agent. (a) As escrow agent hereunder, Bank, acting in such capacity, shall have no duties or responsibilities except for those expressly set forth herein. (b) Developer shall indemnify and hold harmless Bank against any loss, damage or liability, including, without limitation, attorney's fees which may be incurred by the Bank in connection with this Agreement, except any such loss, damage or liability incurred by reason of the gross negligence or willful misconduct of Bank. It is further understood by Developer that if, as the result of any disagreement between it and any other party or adverse demands and claims being made by it or anyone else upon Bank, or if Bank otherwise shall become involved in litigation with respect to this Agreement, Developer agrees that it shall reimburse Bank on demand for all costs and expenses, including, without limitation, attorney's fees, it shall incur or be compelled to pay by reason of such dispute or litigation, including reasonable compensation for time expended in connection with any such dispute or litigation. (c) Developer shall indemnify and hold harmless Municipality against any claim, loss, damage or liability, including, without limitation, attorney's fees which may be incurred by or brought against Municipality in connection with this Agreement, except any such loss, damage or liability incurred by reason of the gross negligence or willful misconduct of Municipality. (d) Bank, acting as such, shall not be liable to anyone by reason of an error or judgment, a mistake of law or fact, or for any act done or step taken or omitted in good faith, and this provision shall survive the termination of this Agreement. (e) At the time the last of the escrowed funds are released and disbursed by Bank in accordance with this Agreement, Bank shall be discharged from any obligation under this Agreement. (f) In accordance with the provisions above, Bank may rely upon and shall be protected in acting upon any statement, instrument, opinion, notice, request, order, approval or document believed by it to be genuine and to have been signed or presented by the proper party or parties. 16. Substitution or Resignation of Bank. Bank reserves the right to withdraw from this Agreement and cease serving as escrow agent hereunder at any time by giving ten (10) days written notice thereof to the Developer and Municipality. Upon notice of resignation by Bank, Developer agrees to find within ten (10) days of such notice a replacement escrow agent acceptable to Municipality. Bank agrees to deliver the escrowed funds then held by Bank to such replacement escrow holder and notify all parties hereto. Bank shall thereupon be released from any and all responsibility or liability to the parties hereto. If the Developer fails to appoint a replacement escrow agent within such ten (10) day period, Bank shall petition any court having jurisdiction for the appointment of a successor escrow agent or for instructions as to the disposition of the documents and moneys held by it under this Agreement. In any event such court appoints a successor escrow agent, Bank shall deliver the escrowed funds then held pursuant to this Agreement, and all records and other documents held by it under this Agreement, upon payment of all fees and expense reimbursements due to Bank, to such successor escrow agent and Bank shall thereby be released from any and all responsibility or liability to the parties hereto. Pending such appointment or instructions, Bank shall continue to be bound by the terms of this Agreement. IN WITNESS WHEREOF, and intending to be legally bound, the parties have set their hands and seals hereto as of the date or dates written below. Dated at South Burlington, Vermont, this � day of May 2008. IN THE PRESENCE OF: City of South Burlington By: . C --a& IP" Duly Authori Agent Dated at Burlington, Vermont, this / 7 day of May 2008. IN THE PRESENCE OF: WROUnw./w 01F.'I Chittenden Trust Company d/b/a Chittenden Bank By: Duly Authorized Agent Dated at South Burlington, Vermont, this __b_ day of May 2008. IN THE PRESENCE OF: Technology Park Partners LLC I•�.»._ V By: '�7� y Authorized Agent ESCROW AGREEMENT THIS AGREEMENT, executed in triplicate by and between Technology Park Partners LLC, hereinafter referred to as "Developer," the City of South Burlington, her-i—R-- —r — as "Municipalitv." and the Chittenden Bank. hereinafter referred to as — , , i / A W WITNESSETH: WHEREAS, Developer has received approval from the Municipality's Review Board for the development of property located at Technology 1 Final Plat Application No. SD-07-65, Findings of Fact and Decision, d� 2007 (the "Development Approval"), as depicted on and in accordance vviul Uic specifications as set forth on Sheet PP2 in plans and specifications titled "Technology Park Subdivision, South Burlington, Vermont," prepared by Trudell Consulting Engineers, dated September 24, 2007 and last revised February 25, 2008 (the "Plans and Specifications"). WHEREAS, Developer is required by said approval, at its own expense, to complete certain improvements; and WHEREAS, the parties to this Agreement wish to establish an escrow account to secure the obligations of the Developer as set forth in the Development Approval; and WHEREAS, the Bank executes this Agreement solely in the capacity of escrow agent. NOW THEREFORE, the parties hereby covenant and agree as follows: 1. Developer will, at its own expense, complete the following construction as depicted and in accordance with the specifications set forth in the Plans and Specifications and related documents: As mandated in Condition Four, the fourth paragraph on page 3, and the last paragraph on page six of the Development Approval, construct the "Tilley Drive connection" between Lot 13 and Lot 8C, as depicted in the Plans and Specifications (the "Improvements"). 2. The Developer shall complete the Improvements no later than ten (10) years from the date of the Development Approval as provided in Condition Four of the Development Approval. If at the expiration of this ten (10) year period, the Improvements are not complete, Developer shall apply to the Municipality's Development Review Board for an extension. 3. Developer shall replace or repair any defective or improper work or materials related to the Improvements which may be identified by the Municipality within two (2) years after completion of the Improvements. For the purpose of this Agreement "completion" shall be deemed to have occurred when the Municipality has inspected and approved the construction of the Improvements and issued written notice to the Developer that the construction thereof is complete. 4. For the guaranty of Developer's performance of all requirements hereinabove set forth, and prior to the issuance of any zoning permit for the work described above in Paragraph 1, Developer and Bank agree that cash in the amount of $88,000 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 $88,000. In addition, upon "completion," as defined above in Paragraph 3, the sum required to secure Developer's obligations under this Agreement will be reduced to $8,800 and the Bank may withdraw from the escrow account $79,200 and may pay the same to Developer or to Developers order. 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. The Bank shall incur no liability to the Developer on account of making such payment to the Municipality, nor shall the Bank be required to inquire into the propriety of any claim by the Municipality of default on the part of the Developer or into the use of such funds by the Municipality in completing such Improvements. 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 5 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 2 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 5 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. The Bank will not refuse or delay to make such payments to the Municipality when requested by the Municipality by an appropriate statement, and Developer will not interfere with or hinder such payments by the Bank to the Municipality. Said statement shall contain a certificate of compliance with the notice requirements of Paragraph 7 of this Agreement. 11. 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 3. 12. Following the disbursement contemplated in Paragraph 4, the sum of $8,800 shall be maintained in escrow until certification to the Bank by the Municipality of the completion of the warranty period set forth in Paragraph 3 or until Bank is instructed, in writing, by Municipality to disburse some or all of that sum to Municipality, at which time Bank shall pay monies from the escrow account as instructed by the municipality. 13. This Agreement shall not only be binding upon the parties hereto, but also their respective heirs, executers, administrators, successors, and assigns. 14. In the event that Developer furnishes Municipality with a Letter of Credit, in form and substance satisfactory to Municipality, as replacement security for the funds escrowed hereunder, and the Municipality concludes that it is beneficial to the Municipality to do so, the Municipality will release the escrowed funds and accept the Letter of Credit, provided the Bank reconfirms, in writing its commitment to the terms and conditions contained herein. 15. Bank as Escrow Agent. (a) As escrow agent hereunder, Bank, acting in such capacity, shall have no duties or responsibilities except for those expressly set forth herein. (b) Developer shall indemnify and hold harmless Bank against any loss, damage or liability, including, without limitation, attorney's fees which may be incurred by the Bank in connection with this Agreement, except any such loss, damage or liability incurred by reason of the gross negligence or willful misconduct of Bank. It is further understood by Developer that if, as the result of any disagreement between it 3 and any other party or adverse demands and claims being made by it or anyone else upon Bank, or if Bank otherwise shall become involved in litigation with respect to this Agreement, Developer agrees that it shall reimburse Bank on demand for all costs and expenses, including, without limitation, attorney's fees, it shall incur or be compelled to pay by reason of such dispute or litigation, including reasonable compensation for time expended in connection with any such dispute or litigation. (c) Developer shall indemnify and hold harmless Municipality against any claim, loss, damage or liability, including, without limitation, attorney's fees which may be incurred by or brought against Municipality in connection with this Agreement, except any such loss, damage or liability incurred by reason of the gross negligence or willful misconduct of Municipality. (d) Bank, acting as such, shall not be liable to anyone by reason of an error or judgment, a mistake of law or fact, or for any act done or step taken or omitted in good faith, and this provision shall survive the termination of this Agreement. (e) At the time the last of the escrowed funds are released and disbursed by Bank in accordance with this Agreement, Bank shall be discharged from any obligation under this Agreement. (f) In accordance with the provisions above, Bank may rely upon and shall be protected in acting upon any statement, instrument, opinion, notice, request, order, approval or document believed by it to be genuine and to have been signed or presented by the proper party or parties. 16. Substitution or Resignation of Bank. Bank reserves the right to withdraw from this Agreement and cease serving as escrow agent hereunder at any time by giving ten (10) days written notice thereof to the Developer and Municipality. Upon notice of resignation by Bank, Developer agrees to find within ten (10) days of such notice a replacement escrow agent acceptable to Municipality. Bank agrees to deliver the escrowed funds then held by Bank to such replacement escrow holder and notify all parties hereto. Bank shall thereupon be released from any and all responsibility or liability to the parties hereto. If the Developer fails to appoint a replacement escrow agent within such ten (10) day period, Bank shall petition any court having jurisdiction for the appointment of a successor escrow agent or for instructions as to the disposition of the documents and moneys held by it under this Agreement. In any event such court appoints a successor escrow agent, Bank shall deliver the escrowed funds then held pursuant to this Agreement, and all records and other documents held by it under this Agreement, upon payment of all fees and expense reimbursements due to Bank, to such successor escrow agent and Bank shall thereby be released from any and all responsibility or liability to the parties hereto. Pending such appointment or instructions, Bank shall continue to be bound by the terms of this Agreement. 0 IN WITNESS WHEREOF, and intending to be legally bound, the parties have set their hands and seals hereto as of the date or dates written below. A Dated at South Burlington, Vermont, this 67 day of May 2008. IN THE PRESENCE OF: City of South Burlington By: ( p "i Du y Authorized Agent 5 i Dated at Burlington, Vermont, this day of May 2008. IN THE PRESENCE OF: WJF64 ffm , r�i� Chittenden Trust Company d/b/a Chittenden Bank By: . IKL) Duly Authori gen _ G Dated at South Burlington, Vermont, this %5- day of May 2008. IN THE PRESENCE OF: Technology Park Partners LLC By. , u Authorized Agent