HomeMy WebLinkAbout0000 Airport Drive - Landscaping - 6/15/2010Bank
America's Most Convenient Bank'
TD Bank, N.A.
Global Trade Finance
17 New England Executive Park
1 st Floor
Burlington, MA 01803
www.tdbank.com
IRREVOCABLE STANDBY LETTER OF CREDIT
Issue Date: June 15, 2010
Expiration Date: September 1, 2011
Letter of Credit Number SB20003762
Issuer: TD Bank, N.A.
BENEFICIARY
City of South Burlington
575 Dorset Street
South Burlington, VT 05403
Gentlemen:
APPLICANT
City of Burlington
149 Church Street
Burlington, VT 05401
At the request of and for the account of our customer, the City of Burlington, we hereby issue our
Irrevocable Standby Letter of Credit in your favor in the aggregate amount of Eighty One
Thousand Six Hundred Sixty Seven and 00/100 United States Dollars (US$ 81,667.00) expiring
at our counters on September 1, 2011 available by your draft(s) drawn on ourselves at sight
accompanied by:
1. The original letter of credit and any amendments thereto, if any.
2. A statement purportedly signed by an authorized official of the City of South Burlington
reading exactly as follows: "This drawing in the amount of (specify amount) is
due us as the result of the failure of the City of Burlington to perform the required
landscaping and repair the damages to Airport Drive as agreed to between the City of
South Burlington and the City of Burlington."
PAGE 2 OF IRREVOCABLE STANDBY LETTER OF CREDIT NO. SB20003762
Demand for payment under this Letter of Credit may be made prior to its expiration at any time
during the Bank's business hours on day on which the Bank's main office is open to the public
for the purpose of carrying on substantially all of its banking functions (a "Business Day"). Any
demand for payment and all other communications to the Bank relative to this Letter of Credit
shall be in writing and addressed and presented to TD Bank, N.A, Global Trade Finance, 17 New
England Executive Park, 1 st Floor, Burlington, MA 01803.
This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits,
International Chamber of Commerce Publication No. 600 (2007 Revision).
Drafts drawn hereunder must be marked "Drawn under TD Bank, N.A., Irrevocable Standby
Letter of Credit No. SB20003762 dated June 15, 2010".
We hereby agree that all drafts drawn under and in compliance with the terms of this Letter of
Credit will be duly honored on delivery of documents as specified if presented at our counters on
or before the expiration date indicated above.
Sincerely,
TD Bank, N.A.
By:
G. Thomas Maslin
Its: Vice President
Please address all inquires related to the contents of this item to the above address, Attn: Global Trade
Banking, Standby Letter of Credit Dept., or by calling: Tom Maslin @ (781) 229-7139 or John
Amuzzini @ 781-229 7141. Our Fax # (781) 229-7127
El Bank
America's Most Convenient Bank'
IRREVOCABLE STANDBY
Issue Date: J
Expiration Date:.
Letter of Credlt�
Issuci,VTD
RTi VVV1 1A1DV
TD Bank, N.A.
Global Trade Finance
17 New England Executive Park
I st Floor
Burlington, MA 01803
www.teanx.com
OF
ber 1, 20
820003762
APPLICANT
City of Burlington
V.hurch Street
inston, VT 05401
the City of Burlington, we hereby issue our
he aggregate amount of Eighty One
d States Dollars (US$ 81,667.00) expiring
xr draft(s) drawn on ourselves at sight
1. The original letter of credit and any amendments thereto, if any.
2. A statement purportedly signed by an authorized official of the City of South Burlington
reading exactly as follows: "This drawing in the amount of (specify amount) is
due us as the result of the failure of the City of Burlington to perform the required
landscaping and repair the damages to Airport Drive as agreed to between the City of
South Burlington and the City of Burlington."
PAGE 2 OF IRREVOCABLE STANDBY LETTER OF CREDIT NO. SB20003762
Demand for payment under this Letter of Credit may be made prior to its expiration at any time
during the Bank's business hours on day on which the Bank's main office is open to the public
for the purpose of carrying on substantially all of its banking functions (a "Business Day"). Any
demand for payment and all other communications to the Bank relative to this Letter of Credit
shall be in writing and addressed and presented to TD Bank, N.A, Global Trade Finance, 17 New
England Executive Park, 1 st Floor, Burlington, MA 01803.
This Letter of Credit is subject to the Uniform Customs and F
International Chamber of Commerce Publication No. 600 (2007
Drafts drawn hereunder must be marked "Drawn
Letter of Credit No. SB20003762 dated June 15,
We hereby agree that all drafts drawn
Credit will be duly honored on delivery
or before the expiration date indicated
Sincerely,
TD Bank, N.A.
By: /�
Its: €l
Please adds
Banking, Sti
Amuzzini @
Q
Hance with
)ecified if r
for Documentary Credits,
on).
Irrevocable Standby
of this Letter of
our counters on
contents of this item to the above address, Attn: Global Trade
or by calling: Tom Maslin @ (781) 229-7139 or John
31) 229-7127
MCKEE, GIULIANI & CLEVELAND
J. PAUL GIULIANI
GEORGIANA O. MIRANDA (NY AND VT)
GLORIA K. RICE
JOHN P. RILEY
GLENN C. HOWLAND
ELIZABETH H. MAGILL
June 15, 2010
TD Bank, N.A.
90 Main Street
Montpelier, VT 05602
ATTN: Gail Cromie
City of South Burlington
575 Dorset Street
South Burlington, VT 05403
ATTN: Dennis P. Gravelin
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
P.O. BOX 1455
MONTPELIER, VERMONT 05601-1455
TELEPHONE: (802) 223-3479
FAX (802) 223-0247
Re: City of Burlington/June 15, 2010
Irrevocable Letter of Credit
Ladies and Gentlemen:
PETER GIULIANI (1907-1998)
W. EDSON McKEE (1923-1999)
ALDEN GUILD (RET.)
OF COUNSEL
FREDERICK G. CLEVELAND
OFFICES AT:
TD BANKNORTH BUILDING
94 MAIN STREET, 2ND FLOOR
MONTPELIER, VT 05602
TD Bank, N.A.
17 New England Executive Park
Burlington, MA 01803
ATTN: G. Thomas Maslin
We have acted as special counsel to "I'D Bank, N.A. (the "Bank") in connection with its
Irrevocable Letter of Credit No. SB20003762 dated June 15, 2001 in the original stated
amount of $81,667 (the "Letter of Credit") to the City of South Burlington, Vermont.
(the original `Beneficiary"), for the benefit and accommodation of the City of
Burlington, Vermont (the "City"), the maturity of which Letter of Credit is September 1,
2011.
We have examined the form of Letter of Credit. In addition, we have examined and
relied upon originals (or copies certified or otherwise identified to our satisfaction) of
such documents, corporate records, certificates of corporate officers and other
instruments and legal matters as we have deemed necessary for the purposes of the
opinions expressed herein. In such examination, we have assumed (i) the genuineness of
all signatures; (ii) the authenticity of all documents submitted to us as originals; (iii) the
TD Bank, N.A
City of South Burlington
June 15, 2010
Page Two
conformity to original documents of all documents; (v) the legal competence and
authority of all signatories (other than the Bank) to such documents to execute and
deliver such documents; (vi) that none of the resolutions for which the Bank has
provided certification to us have been amended or revoked; (vii) the valid authorization,
execution, and delivery by the City of each instrument identified in or contemplated by
the Letter of Credit; (viii) that the City has been duly organized and is validly existing
with the authority to perform its obligations under or contemplated by the Letter of
Agreement; (ix) that each of the agreements, contracts and undertakings in those
instruments identified in or contemplated by the Letter of Credit, and to which the City is
a party, is a valid and binding obligation of the City; (x) that, as to any instrument,
agreement, or document delivered, or obligations incurred, by the Bank, the Bank has
received agreed to consideration therefor; (xi) the accuracy and completeness of all
certificates and other statements, documents, and records reviewed by us; and (xii) the
accuracy and completeness of all representations, warranties, schedules, and exhibits
contained in the Letter of Credit, with respect to the factual matters set forth therein. We
have relied upon the aforementioned instruments, certificates and documents and have
made no independent verification or investigation as to the factual matters set forth
therein.
Based upon the foregoing, and subject to the qualifications below and matters of reliance
set forth above, it is our opinion that:
1. The Bank is a national bank organized and validly existing under the laws of the
United States. The Bank has full power and authority to conduct its business and
own its property.
2. The Bank has the power and authority to execute and deliver the Letter of Credit,
and to perform its obligations under the Letter of Credit.
3. The Letter of Credit has been duly authorized, executed and delivered by an
authorized officer of the Bank.
4. The Letter of Credit constitutes the legal, valid and binding obligation of the Bank,
enforceable against the Bank in accordance with its terms.
TD Bank, N.A
City of South Burlington
June 15, 2010
Page Three
5. Upon presentation by the Beneficiary of its sight draft, in accordance with and
accompanied by the appropriate documentation required under the Letter of
Credit, the Bank would be obligated to make payment to the Beneficiary in
accordance with the terms of the Letter of Credit, notwithstanding the bankruptcy
or insolvency, reorganization, moratorium or similar proceeding at the time with
respect to the City.
6. To the best of our knowledge, there is no litigation or proceeding pending or
threatened against the Bank which could adversely affect the ability of the Bank: to
satisfy its obligations under the Letter of Credit, or which seeks to enjoin, restrain
or otherwise impair consummation of the transactions contemplated by the Letter
of Credit.
In rendering the foregoing opinions, we express no opinion as to: (1) laws other than the
laws of the State of Vermont and the federal laws of the United States of America, or (2)
whether the enforceability of the Letter of Credit, may be limited (a) by federal and state
laws affecting the rights of creditors and beneficiaries under letters of credit in the event a
financial institution whose deposits are insured by the Federal Deposit Insurance
Corporation is placed into receivership, conservatorship, or liquidation, from time to time
in effect, as such laws would be applied in the event of the receivership, conservatorship,
or liquidation, or similar situation of the Bank or a federal or state imposed moratorium
applicable to the Bank, or (b) by applicable federal or state laws relating to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the rights of creditors
generally, from time to time in effect, as such laws would be applied in any event of
bankruptcy, insolvency, reorganization or similar situation, including but not limited to
general principles of equity which are available to a court by virtue of a bankruptcy
proceeding and by reason of the existence of such proceeding and which would not be
available to a court in the absence of such proceeding (regardless of whether such
enforceability is considered in a proceeding in equity or at law) as well as the application
of public policy limitations and equitable principles, regardless of whether such are
considered in a proceeding at law or in equity, and whether in a bankruptcy proceeding or
not, or (c) the application by a court of equitable principles, whether the action is brought
at law or in equity.
We are opining only as to the matters expressly set forth herein, and no opinion should be
inferred as to any other matters. The opinions set forth herein are based upon currently
TD Bank, N.A
City of South Burlington
June 15, 2010
Page Four
existing statutes, rules, regulations, and judicial decisions, and we disclaim any obligation
to advise you of any change in any of these sources of law or subsequent legal or factual
developments that might affect any matters or opinions set forth herein.
We are members of the Bar of the State of Vermont, and this opinion shall not be deemed
to constitute that we are holding ourselves out as experts in, and do not render any
opinion as to, the laws of any jurisdiction other than such State and the United States.
This letter may be relied upon solely by the addressees.
Very truly yours,
J. Paul Giuliani
JPG Ja
[9475-1]
cc: Jonathan P.A. Leopold
Chief Administrative Officer
149 Church Street
Burlington, VT 05401-8489
SITE PLAN
LETTER OF CREDIT AGREEMENT (ROAD CONDITION)
THIS AGREEMENT, executed in triplicate between City of
Burlington, Vermont hereinafter referred to as DEVELOPER, T.D.
Bank, N.A., hereinafter referred to as BANK, and the City of
South Burlington, herein after referred to as MUNICIPALITY.
WITNESSETH:
WHEREAS, DEVELOPER has received site plan approval No. SP-9-
63 dated February 2, 2010 from the MUNICIPALITY`s Development
Review Board for the development of "Burlington International
Airport Parking Expansion Project, Phase 2," (PEP2), as depicted
on and in accordance with the specifications as set forth on the
site plan "Parking Expansion Project 2, Permit Set for North
Phase Construction," with four architectural renderings of the
structure, along with drawings A-101, a-102, L-6 and L-7, dated
March 11, 2009, last, revised January 5, 2010, prepared by Freeman
French Freeman(the "Site Plan" herein);
WHEREAS DEVELOPER is required by said approvals to provide a bond
to cover the cost of construction vehicle damage to Airport
Drive;
WHEREAS the parties to the Agreement wish to establish a
mechanism to secure the obligations of the DEVELOPER; 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 shall repair Airport Drive after the
completion of construction and until such time as the
Director of Public Works notifies the bank that the
Letter of Credit may be canceled, pursuant to Paragraph
11.
2. 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.
3. Upon "completion" (i.e.; the date of the City's
inspection and approval), the CITY shall provide
DEVELOPER.and BANK written notice of completion.
4. 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 the repair of
Airport Drive. 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.
5. 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 2 above, MUNICIPALITY may notify BANK of
such default and request payment of the remaining
balance available on said Letter of Credit.
MUNICIPALITY shall be under no obligation to provide a
statement that the funds to be drawn, pursuant to this
Paragraph, are in payment for, or in anticipation of
payment for materials, labor and services required for
the repair of Airport Drive. 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 the repair of Airport Drive. 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 the
repair of Airport Drive.
6. The DEVELOPER and MUNICIPALITY hereby agree:that.the
sum of Eighty -One Thousand Six Hundred Sixty -Seven
Dollars ($81,667.00) 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.
7. 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.
8. 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.
9. 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 repairing
Airport Drive. 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.
10. 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.
ll.\ This Agreement and said Letter of Credit shall
terminate and shall be of no force and effect only upon
the Bank's receipt of written notice from the
MUNICIPALITY's Director of Public Works,canceling the
Letter of Credit. If the MUNICIPALITY has not
delivered any written notice to the DEVELOPER of any
damage to Airport Drive, or if notice has been given
and the damage has been corrected by the DEVELOPER to
the reasonable satisfaction of the MUNICIPALITY, the
MUNICIPALITY's Director of Public Works 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.
12. The BANK may not modify the Letter of Credit without
first receiving written consent to the modification by
the MUNICIPALITY.
13. 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.
14. This agreement shall be binding on all parties hereto
and their respective heirs, executers, administrators,
successors, and assig s. d
DATED at �y� b�QG I ,vGPI Vermont, this day of
20 to J
IN THE PRESENCE OF:
CITY OF BURLINGTON, VERMONT
�—fr tness �wtp By.
Duly Authorized Ag nt
IN THE PRESENCE OF:
T.D. BANK, N.A.
Aaa By
Witness Duly Authorized A
IN APRESENCEg CITY OF SOUTH BURLINGTON
By:
witkess Duly Authorized Agent
SON10-026 AIRPORT ROAD DAMAGE LOC AGR
200020-00078