HomeMy WebLinkAbout0005 Dorset Street - Landscaping - 12/10/2013IN27INr
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PLANNING & ZONING
MEMORANDUM
TO: Tom Hubbard, City Treasurer
FROM: Raymond J. Belair, Administrative Officer
DATE: December 10, 2013 0
SUBJECT: Establishment of Letter of Credit Account for Project # SD-13-31
Site Landscaping
Pursuant to the above -listed approval by the city's Development Review Board (DRB), the
applicant has established a Letter of Credit account. The documents have been prepared
using legal documents prepared by the City Attorney.
The amount included in this Letter of Credit account has been verified and meet the
requirements of the DRB decision.
The amount of the surety is: $ 77,500
The surety is required to be maintained until: 12/10/16.
Please complete and sign the enclosed three -party agreement authorizing the
establishment of this Letter of Credit account.
575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburl.com
SITE PLAN
LANDSCAPING LETTER OF CREDIT AGREEMENT
THIS AGREEMENT, executed in triplicate between Larkin Family
Partnership, hereinafter referred to as DEVELOPER@, Mascoma Bank,
hereinafter 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. SD-
13-31 dated 11/05/2013 from the MUNICIPALITY=s Development Review
Board for the development of a Planned Unit Development with
related improvements/amendments in a development to be known as
"Homewood Suites, 5 Dorset St", as depicted on and in accordance
with the specifications as set forth on the final plat entitled
"Dorset Street Hotel, So. Burlington, VT", dated 1/19/2012, last
revised 11/13/2012, prepared by Ruggiano Engineering, Inc., d/b/a
Llewellyn -Howley Inc., and recorded at Map Slide (slide # if
known, otherwise leave blank)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 "Overall Site Plan, 5 Dorset Street Hotel", dated
5/1/2012, last revised 2/22/2013, prepared by Ruggiano
Engineering,Inc. (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:
a. Landscaping as described on L-1 prepared by Green
MT Earth Care revision date 2/19/2013
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. 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.
S. 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.
6. 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 Seventy -Seven Thousand and Five Hundred Dollars
($77,500.00)) shall be sufficient to secure DEVELOPER=S
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, 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 assi ns. l/,`,/',�
J��� DATED at C /U� b Vermont, this /L) day of
20(// .
IN THE PRESENCE OF: Developer
By:
Witness Duly Auth Rrized Agent
IN THE PR CE OF:
By:
Witness
IN TH PRESENCE 0
By
W ness
SON1O-022 5-14-10 FORM LANDSCAPING LOC AGR
5/14/10
Bank
Du y Aut orized I Agent
CITY OF SOUTH BURLINGTON
G
my Authorized Agent
MAS C OMA.
SAVINGS
BANK
Incorporated in and mutually owned since 1899.
November 19, 2013
Beneficiary: CITY OF SOUTH BURLINGTON, VERMONT
575 DORSET STREET
SOUTH BURLINGTON, VT 05403
RE: Irrevocable Letter of Credit #7009262
Larkin Family Partnership
To Whom It May Concern:
By this document, Mascoma Savings Bank, fsb, (hereinafter called the "Issuer") hereby issues an
Irrevocable Letter of Credit in the amount of $77,500.00 to City of South Burlington, Vermont
(hereinafter called the "Beneficiary") on behalf of Larkin Family Partnership (hereinafter called
the "Borrower"). This Irrevocable Letter of Credit is issued to guaranty Borrower's performance
of site improvements for 5 Dorset Street Hotel Project as further described in #1 below. This
Letter of Credit shall be payable in a drawing, upon presentation of this original Letter of Credit
and a fully executed Sight Draft and written statement signed by a duly authorized agent of the
Beneficiary, stating that in the judgment of the Beneficiary, the Borrower 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 Issuer by the Beneficiary, the payment limited only by the aggregate
amounts presented in relationship to the maximum amount of the Letter of Credit. The funds so
forwarded to Beneficiary shall be used exclusively for the purpose of completing the Homewood
Suites, 5 Dorset Street Hotel Project, which are guaranteed by this Letter of Credit. Any funds
not needed by the Beneficiary to complete the improvements required shall be returned to
Mascoma Savings Bank, fsb.
It is understood that the improvements guaranteed by this irrevocable letter of credit include but
are not limited to the following:
1. Landscaping requirements as depicted on and in accordance with the specifications as set
forth on a site plan entitled "[Overall Site Plan, 5 Dorset Street Hotel]," dated May 1,
2012, last revised February 22, 2013 prepared by Ruggiano Engineering, Inc.
This Irrevocable Letter of Credit in the amount of SEVENTY SEVEN THOUSAND FIVE
HUNDRED DOLLARS AND 00/100 shall remain in force for THREE years after completion
and BENEFICIARY acceptance of the project. In no event will this Letter of Credit extend
beyond November 19, 2017.
This Letter of Credit is subject to and governed by the laws of the State of Vermont and the
Uniform Customs and Practice for Documentary Credits (2007 revision), International Chamber
of Commerce Publication No. 600, as amended, supplemented or revised from time to time
hereafter (the "UCP") and by Article 5 of the Uniform Commercial Code, except to the extent
that Article 5 is inconsistent with the UCP, and in the event of any conflict, the laws of the State
of Vermont will control.
Mascoma Savings Bank, fsb
/'�— 1) /dv///I
By:
Kevin J.1 a igh, S-eiti&r Vice President
EXHIBIT A
SIGHT DRAFT AND DRAWING CERTIFICATE
To: Mascoma Savings Bank
67 North Park Street
Lebanon, NH 03766
Re: Irrevocable Standby Letter of Credit # 7009262 ("Letter of Credit")
Vermont
201
For non-performance, at sight pay to the order of BENEFIFICARY,
Dollars ($ ), and charge the same to Letter of
Credit No.7009262 dated November 19, 2013.
The undersigned certifies that it is making this drawing as a result of the default by
BORROWER of its obligations to
DESCRIPTION OF DEFAULT
BENEFICIARY City of South Burlington, Vermont
By:
(Typed Name)
Its , Duly Authorized