HomeMy WebLinkAbout0725 Hinesburg Road - Landscaping - 11/29/2011Alto
south h, .
PLANNING & ZONING
MEMORANDUM
TO: Donna Kinville, City Treasurer
FROM: Raymond J. Belair, Administrative Officer
DATE: November 29, 2011 0
SUBJECT: Establishment of Escrow Account for Project # SD-11-26
Pursuant to the above -listed approval by the city's Development Review Board (DRB), the
applicant has established an Escrow Account. The documents have been prepared using
legal documents prepared by the City Attorney.
The amount included in this Escrow Account has been verified and meet the requirements
of the DRB decision.
The amount of the surety is: $ 500.
The surety is required to be maintained until: 11-29-14
Please complete and sign the enclosed three -party agreement authorizing the
establishment of this Escrow Account.
575 Dorset Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101 www.sburi.com
SITE PLAN LANDSCAPING
ESCROW AGREEMENT
THIS AGREEMENT, executed in triplicate,;
Land Company, hereinafter referred to as AD�-
United Bank, hereinafter referred to as AB
South Burlington, herein after referred to
l
WITNESSETH:
WHEREAS, DEVELOPER has received final plat approval No. SD
11-26 dated October 19, 2011, from the MUNICIPALITY=s Development
Review Board for the development of a subdivision consisting of
31 unit PUD lots with related improvements, in a development to
be known as "Fay Drive", as depicted on and in accordance with
the specifications as set forth on the final plat entitled "725
Hinesburg Road", dated 11/30/06, last revised 9/21/2011, prepared
by O'Leary Burke Civil Assocaites, 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 Allen Road Land Company, 725
Hinesburg Road, South Burlington", dated 11/30/06, last revised.
9/21/2011, prepared by O'Leary Burke Civil Associates (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 escrow agent.
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 per plan titled 725 Hinesburg Road,
last revised date 10/5/2011.
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 guaranty of DEVELOPER=s performance of all
requirements hereinabove set forth, DEVELOPER and BANK
agree that cash in the amount of $500.00 (five hundred
dollars) 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. 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 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. The BANK shall 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.
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 2.
12. This Agreement shall not only be binding upon the
parties hereto, but also their respective heirs,
executers, administrators, successors, and assigns.
13. In the event that DEVELOPER furnishes MUNICIPALITY with
an Irrevocable 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 may release the funds escrowed
by this agreement and accept the Letter of Credit,
provided the BANK reconfirms, in writing its commitment
to the terms and conditions contained herein.
14. 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
liabilityincurred 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.
15. 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
(1D) 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.
16. IN WITNESS WHEREOF, and intending
the parties have set their hands
the dates or dates written below.
DATED at Burlington
to be legally bound,
and seals hereto as of
, Vermont, this
11/28 day of 2011
IN THE PRESENCE OF:
Witness
l
By: � �-�.
4te, -
Dulylkluthorized Agent
IN THE PRESENCE OF:
By
Witness
IN T E PRESE E F:
By:
unless
SON10-021 5-14•-10 FORM LANDSCAPING ESCROW AGR
5/14/10
[BANK]C�CSf�
j
my AuthorizeVAgent
CITY OF SOUTH BURLINGTON
Du y ,uthorizect Agent
Peopleited
Bank
July 19, 2010
Allen Road Land Company
410 Shelburne Road
Burlington, VT 05401
Re: Irrevocable Standby Letter of Credit # 1964909
City of South Burlington
575 Dorset Street
South Burlington, VT 05403
Dear Beneficiary:
People's United Bank hereby establish our Irrevocable Standby
Letter of Credit #1964909 in favor of City of South Burlington
for the account of Allen Road Land Company up to an aggregate
amount of $19,500.00 available by your draft or drafts on us at
sight accompanied by:
1.) the original Letter of Credit and all amendments, if
any,
2.) a written statement signed by an authorized officer of
City of South Burlington that these funds are due you under
the terms of your agreement with Allen Road Land Company,
accompanied by
3.) a current secretary certificate or resolution from City
of South Burlington that the officer is authorized to sign
on behalf of City of South Burlington.
If your demand represents a partial drawing hereunder, we will
endorse the original credit and return same to you for possible
future claims. If, however, your demand represents a full
drawing, or if such drawing is presented on the day of the
relevant expiration date hereof, we will hold the original for
our files and remove same from circulation.
Peoples United
Bank
All drafts must be marked under Letter of Credit #1964909.
We engage with you that all drafts drawn under and in compliance
with the terms and conditions of this credit will be duly honored
on delivery of documents as specified if presented at this office
on or before March 15, 2012.
Except so far as otherwise expressly stated, this credit is
subject to the "International Standby Practices ISP 98 (1998
Revision), International Chamber of Commerce Publication #590"
Very truly yours,
Brian D. Messier
Director of Loan Operations
SITE PLAN
LETTER OF CREDIT AGREEMENT
THIS AGREEMENT, executed in triplicate between, t60 &Ap J&D CB�nAPv'( of
6UgkVU6` 0,Aj hereafter referred to as "DEVELOPER", PCoPtZ 4S '(—Of
nEl )
of —6VrU u6U AJ , hereafter referred to as "BANK", and
C+"y o1^ 50.60'Rct 06TO/J , hereafter referred to as "MUNICIPALITY".
WITNES SETH:
WHEREAS, DEVELOPER has received site plan approval from the
MUNICIPALITY'S Planning Commission for the development of property located at
725 tiwe5sugi-) 2p , as depicted on a site plan entitled
" , dated I li3alD . 61 V 413I09 ,
and prepared by 01 tEmw 6vaCC LWIL A660CfATC5 PLC -
WHEREAS, DEVELOPER is required by said approval, at its own expense, to
complete the construction of the development site in accordance with the plan approved
by the Planning Commission; and
WHEREAS, the parties to this Agreement wish to establish a mechanism to
secure the obligations of the DEVELOPER for the work as set forth above; 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 construction
as depicted and in accordance with the specifications set forth in said site plan and related
documents:
(/AND6CAeI0
2. The DEVELOPER shall complete the improvements set forth in Paragraph 1
no later than 6Lia 8 ty2 d o 11
-1-
3. DEVELOPER shall replace or repair any defective or improper work or
materials which may be recognized within three years after completion of the improve-
ments set forth in Paragraph 1. For the purpose of this Agreement "completion" shall be
deemed to have occurred when the MUNICIPALITY has inspected and approved the
construction of all the improvements required by this Agreement and issued written
notice to the DEVELOPER that the construction is complete.
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 dated thereof. Failure of 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
credit, must be accompanied by a written statement signed by a duly authorized agent of
the MUNICIPALITY, that in the judgment of the MUNICIPALITY, the DEVELOPER is
in default under the terms of this Agreement, and the funds drawn by the draft are in
payment for, or in anticipation of payment for the materials, labor and services required
for completion of the improvements identified in Paragraph 1. 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 the Agreement for seven
(7) days because of its failure to provide evidence of renewal of the Letter of Credit,
required in Paragraph 4 above, the MUNICIPALITY shall notify DEVELOPER by
certified mail of said default. DEVELOPER shall then within three (3) business days
provide MUNICIPALITY with evidence of said renewal of Letter of Credit or
MUNICIPALITY may notify BANK of such default and request payment under said
Letter of Credit.
6. The DEVELOPER and MUNICIPALITY hereby agree that the sum of
()JINEWL 29Qu5WD hL� fii1j� -bD °U ) 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 -state cost.
7. The MUNICIPALITY will promptly submit to the DEVELOPER a copy
of any draft it submits 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.
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8. The MUNICIPALITY shall not file with the BANK a Statement of
Default until ten (10) days after notice has been sent to the DEVELOPER, by certified
mail, setting forth its intention to do so.
9. All funds drawn on the BANK by the MUNICIPALITY pursuant to the
Letter of Credit shall be used solely by the MUNCIPALITY for the purpose of
completing construction of the improvements identified in Paragraph 1. 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 MUNCIPALITY shall accomplish the work more expeditiously and
economically.
10. If payments are drawn on the BANK by the MUNICIPALITY pursuant
to said Letter of Credit, and it shall later develop that a portion of the monies drawn are in
excess of the MUNCIPALITY's needs, any such excess amount shall be refunded by the
MUNCIPALITY to the BANK, to be credited by said BANK to the DEVELOPER.
11. This Agreement and said Letter of Credit shall terminate and shall be of
no force and effect upon completion of the three year warranty period as described in the
above Paragraph 3. If the MUNICIPALITY has not delivered any written notice to the
DEVELOPER of any defective or improper work or materials in the construction of the
improvements within the thirty six (36) month period, or if notice has been given and
defective work or materials have been corrected by the DEVELOPER, 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 both the
DEVELOPER and the BANK shall be released from all obligations hereunder and under
said Letter of Credit.
12. Upon request of DEVELOPER, but only at the sole discretion of the
MUNICIPALITY, the MUNICIPALITY may agree to reduce the amount of said Letter
of Credit required hereunder if the MUNCIPALITY believes that the full amount of said
Letter of Credit is no longer necessary to protect its interest, and shall notify the BANK
in writing of such reduction in the amount of the Letter of Credit.
13. The BANK may not modify the Letter of Credit without first receiving
written consent of 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.
-3-
Dated at Qt)Ql IA► 106 �J , Vermont,
this day of ou L 120_La_.
IN THE PRESENCE OF:
.e By:
Du uthorized Agent
(DEVELOPER)
Dated at —&-v- \�o&0� , Vermont,
this day of 2's� \,o , 20 to .
IN TEPRESENCE .
`L L71 V 11J
Dated at o.bqml 6 d -., Vermont
this day of _,3k cy 23 , 2010.
IN T E PRESENCE OF:
By:
Duly Authorized Agent
(MUNICIPALITY)
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