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Home My WebLink About0037 Hinesburg Road - Landscaping - 4/25/2012# \mo southburlington PLANNING & ZONING MEMORANDUM TO: Donna Kinville, City Treasurer FROM: Raymond J. Belair, Administrative Officer DATE: April 25, 2012 SUBJECT: Establishment of Letter of Credit Account for Project # SD-11-43 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: $ 5,625 The surety is required to be maintained until: 04-25-15 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.sburi.com SITE PLAN LANDSCAPING LETTER OF CREDIT AGREEMENT THIS AGREEMENT, executed in triplicate between Antonio B. Pomerleau, LLC hereinafter referred to as ADEVELOPER@, People's United Bank, hereinafter referred to as ABANK@, and the City of South Burlington, herein after referred to as AMUNICIPALITY@. WITNESSETH: WHEREAS, DEVELOPER has received final plat approval No. SD- 11-43 dated 1-19-12 from the MUNICIPALITY=s Development Review Board for the development of a subdivision consisting of 0 lots with related improvements, in a development to be known as "Commerce Square", as depicted on and in accordance with the specifications as set forth on the final plat entitled "COMMERCE SQUARE SOUTH BURLINGTON, VERMONT AUBUCHON ADDITION PROPOSED IMPROVEMENTS EXHIBIT", dated 10-28-11, last revised 3-29-12, prepared by DuBois & King, Inc., and recorded at Map Slide [slide # if known, otherwise leave blanks 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 "COMMERCE SQUARE AUBUCHON EXPANSION SOUTH BURLINGTON, VERMONT AUBUCHON ADDITION OVERALL SITE PLAN", dated 10-28-11, last revised [last revision 'date of the plan] N/A, prepared by DuBois & King, 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. Installation of 3 Quercus rubra , red oak 4-5" caliper along western side of new addition. b. [second landscaping item to be completed] N/A 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. 5. 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 FIVE THOUSAND SIX HUNDRED AND TWENTY-FIVE AND 00/00 DOLLARS $5,625.00) 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 assigns. DATED at Burlington and South Burlington, Vermont, this 24th day of April, 2012. IN THE PRESENCE OF: IkItnes-s IN THE PRESENCE OF: Antonio B. P erl u, LLC By: y Authorized Agent People's United Bank By: `ayt- &Ut'h4d Witness Du y Authorized Agent Jol IN THE PRESEN OF: CITY OF SOUTH BURLINGTON BY� �At'nClss Duly Authorized Agent SON10-022 5-14-10 FORM LANDSCAPING LOC AGR 5/14/10 Peoples United Bank LETTER OF CREDIT NO. SB-1765 City of South Burlington Attn: Ray Belair 575 Dorset Street South Burlington, VT 05403 Sir/Madam, CT Loan Servicing Department / Letters of Credit T:203-338-3223 F:203-338-5578 ISSUE DATE EXPIRY DATE April 05, 2012 April 15, 2015 On the instructions and for account of Antonio B. Pomerleau, LLC, 69 College Street, Burlington, VT 05401 we hereby establish our Clean, Irrevocable, Standby Letter of Credit No. SB-1765, in your favor, available by your draft drawn on us at sight, for a sum not exceeding the total amount FIVE THOUSAND SIX HUNDRED TWENTY FIVE and 00/100 (United States Dollars $5,625.00) Partial Drawings are permitted. All bank charges and commissions incurred in this transaction are for account of the applicant. Any funds drawn hereunder and not eventually applied by you in reimbursement of loss incurred by you will be repaid to us by you. Draft drawn under this Letter of Credit must bear on their face the clause "Drawn under People's United Bank Credit No. SB-1765 dated April 05, 2012". We engage with you that draft drawn under and in compliance with the terms and conditions of this credit will be duly honored upon presentation and delivery of documents, as specified, to the address below, ATTN: CT Loan Servicing Department RC 7-280, on or before April 15, 2015 which is the expiration date of this Letter of Credit. Please Note: In the event this Letter of Credit is no longer required, or is to be cancelled prior to the present or future expiration date, it must be returned along with any amendments thereto, to this office for cancellation. Except so far as otherwise expressly stated, this credit is subject to the "Uniform Customs and Practice for Documentary Credits (2007 Revision), ICC Publication No. 600." Very truly yours, Peop 's United Bank by: Authorized Sign re 850 Main Street Bridgeport, Connecticut 06604 Peoples.com Peoples United Bank April 5, 2012 City of South Burlington Attn: Ray Belair 575 Dorset Street South Burlington, VT 05403 Dear Mr. Belair: CT Loan Servicing Department / Letters of Credit T:203-338-3223 F:203-338-5578 At the request of our customer Antonio B. Pomerleau, LLC, we enclose our original Irrevocable Standby Letter of Credit No SB-1765 in your favor, available by draft for an amount not exceeding USD $5,625.00 in accordance with the terms of the letter of credit. We would greatly appreciate if you would acknowledge receipt by signing where indicated on the copy of the letter of credit, and returning this signed copy in the enclosed envelope. Your prompt attention will be greatly appreciated Sincerelyc Oki4a, Loan Servicing Department 850 Main Street BC07-RC 280 Bridgeport, CT 06604 (P) 203-338-2409 (F) 203-338-5578 Encl. 850 Main Street Bridgeport, Connecticut 06604 Peoples.com