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Home My WebLink About1000 Shelburne Road - Landscaping - 9/13/2012southhurl, InIgto PLANNING & ZONING MEMORANDUM TO: Robert Rusten, City Treasurer FROM: Raymond J. Belair, Administrative Officer 5 DATE: September 13, 2012 SUBJECT: Establishment of Escrow Account for Project # SD-12-05 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: $ 17,500. The surety is required to be maintained until: 9-13-15 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.sburl.com ESCROW AGREEMENT THIS AGREEMENT, executed in triplicate among NEW ENGLAND FEDERAL CREDIT UNION (the "Developer"), LISMAN LECKERLING P.C. (the "Escrow Agent") and the CITY OF SOUTH BURLINGTON (the "Municipality"). Recitals A. The Developer has received final plat approval No. SD-1205, dated May 2, 2012, from the Municipality's Development Review Board to raze an existing office building and construct a 3,920 square foot drive-in bank facility at 1000 Shelburne Road, as depicted on and in accordance with the specifications as set forth on the final plat entitled Plat of Survey New England Federal Credit Union 1000 Shelburne Road South Burlington Vermont dated February 9, 2012, last revised 2/9/12, prepared by Civil Engineering Associates, Inc. recorded in Map Slidjk!(of the Land Records of the City of South Burlington (the "Final Plat"). B. The 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. C. The parties to the Agreement wish to establish a inechanism to secure the obligations of the Developer the work as set forth below. D. The Escrow Agent executes this Agreement solely in the capacity of escrow agent. Terlils and Provisions NOW THEREFORE, the parties hereby covenant and agree as follows: Section 1. Work to be Completcd. The Developer shall, at its own expense, complete the following construction as depicted and in accordance with the Final Plat: landscaping as set forth on a plan entitled NEFCU 1000 Shelburne Road South Burlington 1 VT Landscape Plan & Schedule dated March 6, 2012, prepared by Freeman French Freeman. Section 2. Continuing Obligation. The Developer shall replace or repair any defective or improper work or materials which may be identified as such by the Municipality within three years after completion of the improvements set forth in Section 1 by the Municipality (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. Section 3. Notice to Escrow Agent. Upon "completion," the Municipality shall provide written notice of completion to the Developer and the Escrow Agent. Section 4. Cscrow Funds. For the guaranty of the Developer's performance of all requirements licreinabove set forth, the Developer and the Escrow Agent agree that cash in the amount of $17,500 shall be held in escrow by the Escrow Agent and shall be available for payment to the Municipality in accordance with the terms herein set forth. The fiords 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 fiends 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 acceptance. Section 5. Default; Procedure. (a) If the Municipality files with the Escrow Agent a statement that the Developer is, in the judgment of tine Municipality, in default under the terms of this Agreement, the Escrow Agent shall pay monies from said escrow fund to the Municipality in the amounts) requisitioned by the Municipality to complete the Improvements and satisfy the requirements in this Agreement. (b) The Municipality will promptly submit to the Developer a copy of such statement as it files with the Escrow Agent. The consent of the Developer to payments by the Escrow agent to the Municipality shall not be required or solicited. The Escrow Agent shall incur no 2 liability to the Developer on account of making such payment to the Municipality, nor shall the Escrow Agent 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 finds by the Municipality in completing such Improvements. (c) The Municipality shall not file with the Escrow Agent a statement of default until 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. Section G. Use of Funds by Municipality. (a) All monies released by the Escrow Agent to the Municipality pursuant to Section 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 such a manner as in the judgment of the Municipality shall accomplish the work more expeditiously and economically. (b) If monies are released by the Escrow Agent to the Municipality pursuant to Section 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 Escrow Agent to be held and distributed by the Escrow Agent pursuant to the terms of this Agreement. Section 7. Authorization. The Escrow Agent shall not refuse or delay to make such payments to the Municipality when requested by the Municipality by an appropriate statement, and the Developer will not interfere with or hinder such payments by the Escrow Agent to the Municipality. Section 8. Expiration. 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 Section 2. Section 9. Successors; etc. This Agreement shall not only be binding upon the parties hereto, but also their respective heirs, executers, administrators, successors, and assigns. Section 10. Reduction. 3 Upon request of the Developer, but only at the sole discretion of the Municipality, the Municipality may agree to reduce the amount required to secure the Developer's obligations under this Agreement if the Municipality believes that the full amount of funds escrowed hereunder is no longer necessary to protect its interest, and sliall notify the Escrow Agent in writing of such reduction in the amount of finds escrowed hereunder. Section 11. Protection of Escrow Agent. (a) As escrow agent hereunder, the Escrow Agent, acting in such capacity, sliall have no duties or responsibilities except for those expressly set forth herein. (b) The Developer shall indemnify and hold harmless the escrow Agent against any loss, damage or liability, including, without limitation, attorney's fees which may be incurred by the Escrow Agent in connection with this Agreement, except any such loss, damage or liability incurred by reason of the gross negligence or willful misconduct of the Escrow Agent. It is further understood by the 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 the Escrow Agent, or if the Escrow Agent otherwise shall become involved in litigation with respect to this Agreement, the Developer agrees that it shall reimburse the escrow Agent 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) The 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 the Municipality in connection with this Agreement, except any such loss, damage or liability incurred by reason of the gross negligence or willful misconduct of the Municipality. (d) The Escrow Agent, 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 tennination of this Agreement. (c) At the time the last of the escrowed funds are released and disbursed by Escrow Agent in accordance with this Agreement, the Escrow Agent shall be discharged from any obligation under this Agreement. (f) 1n accordance with the provisions above, the Escrow Agent 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. Section 12. Substitution or Resignation of Escrow Agent. 4 The Escrow Agent 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 the Municipality. Upon notice of resignation by the Escrow agent, the Developer agrees to find within ten days of such notice a replacement escrow agent acceptable to the Municipality. The Escrow Agent agrees to deliver the escrowed fiords then held by the escrow Agent to such replacement escrow holder and notify all parties hereto. The Escrow Agent 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 10 day period, the Escrow Agent 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, the Escrow Agent 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 the Escrow Agent, to such successor escrow agent and the Escrow Agent shall thereby be released from any and all responsibility or liability to the parties hereto. Pending such appointment or instructions, the Escrow Agent shall continue to be bound by the terms of this Agreement. Section 13. Substitute Collateral. In the event that the Developer furnishes the Municipality with an irrevocable letter of credit, in form and substance satisfactory to the Municipality, as replacement security for the fiords escrowed licreunder and the Municipality concludes that it is beneficial to the Municipality to do so, the Municipality may release the funds escrowed by the Agreement and accept the letter of credit, provided that the Escrow Agent reconfirms, in writing, it commitment to the terms and conditions contained herein. 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: September ! Z , 2012. NEW ENGLAND FEDERAL CREDIT UNION By----- :11111 STATE OF VERMONT CHITTENDEN COUNTY, SS. CITY OF SOUTH BURLINGTON By: ! At Williston this day of September, 2012,s i duly authorized agent of New England Federal Credit Union personally appeared, and he acknowledged this 5 instrument, by him scaled and subscribed, to be his free act and deed and the free act and deed of New England federal Credit Union. �— Before me, Notary Public Print Name: V tt:L.!f �EA I& My Commission Expires: 2/10/015 STATE OF VERMONT CHITTENDEN COUNTY, SS. At South Burlington this / 5 day of September, 2012'151)12 4?V rj, , duly authorized agent of City of South Burlington personally appeared, and lie acknowledged this instrument, by him sealed and subscribed, to be his free act and deed and the free act and deed of City of South Burlington. Be e n biotary P iblic 1 Print Name: U i� , JI-M 6 � 1 My Commission Expires: 2/10/015 LISMAN LECKFliL; G, F. . By: 18793\034 C