HomeMy WebLinkAbout1226 Dorset Street - Infrastructure - 8/7/2020 as
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As
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PLANNING & ZONING
TO: Martha Machar, City Treasurer
FROM: Marla Keene,Administrative Officer
DATE: November 29,2023
SUBJECT: Reduction of Escrow, Infrastructure,#SD-20-18
The applicant's request for the reduction or release of the above-listed has been reviewed for the
following project: #SD-20-18 Medalist Drive
The original amount of the surety was: $489,974.22
The surety is presently: $489,974.22
Based on our analysis,the applicant has qualified for a reduction to in the amount of the public
infrastructure surety to: $ 63,909.68
Please complete and sign the enclosed form authorizing the financial institution to reduce or release the
Bond to the amount listed therein.
180 Market Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101
www.sburl.com
FINANCE DEPARTMENT
November 29, 2023
Bryan Currier, PE
O'Leary-Burke Civil Associates
13 Corporate Drive
Essex Jct., VT 05452
Re:Authorization for Reduction of Infrastructure Escrow—1226 Dorset Street/Medalist Drive
Dear Mr. Currier:
Please be advised that the City of South Burlington hereby authorizes a reduction in the amount of the
above referenced escrow required for public infrastructure improvements at the 1226 Dorset
Street/Medalist Drive ("Clubhouse Parcel") project.
The escrow can now be reduced as shown below.
Work Covered Initial Value Bonded Bond Value to be Released
Medalist Drive $489,974.22 $426,064.54
Should you have any questions, please do not hesitate to contact us.
Sincerely,
0 V
Martha Machar
Finance Director
180 Market Street South Burlington, VT 05403 tel 802.846.4106 fax 802.846.4101
www.southburlingtonvt.gov
SUBDIVISION
ESCROW AGREEMENT
THIS AGREEMENT, executed in triplicate between Rivers Edge Bldg Dev hereinafter
referred to as DEVELOPER, Union 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 20 1cfated 7/22/2020
the MUNICIPALITY's Development Review Board for the development of a subdivision consisting of 12
lots with related improvements, in a development to be known as"Clubhouse Parcel ", as
depicted on and in accordance with the specifications as set forth on the final plat entitled
"Vermont National Clubhouse Parcel ", dated 01/23/2020 Jast revised 06/05/2020
prepared by O'Leary-Burke CA, PLC , and recorded at Map Slide 6'.39.3 of the Land Records
of the City of South Burlington (the "Final Plat 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 construction as depicted
and in accordance with the Final Plat:
a Public Infrastructure
b.
2. DEVELOPER shall replace or repair any defective or improper work or materials which
may be identified as such by the MUNICIPALITY within two (2) years after acceptance of
the improvements set forth in Paragraph 1 by the MUNICIPALITY (hereinafter the
"Warranty Period"). For the purpose of this Agreement"acceptance" shall be deemed to
have occurred when the MUNICIPALITY's legislative body has voted to accept ownership
of all the improvements required by this Agreement and applicable deeds of conveyance
have been recorded in the Land Records of the City of South Burlington.
3. Upon "acceptance,"the CITY shall provide DEVELOPER and BANK written notice of
acceptance.
4. For the guaranty of DEVELOPER•s performance of all requirement IZepbo,ye set
forth, DEVELOPER and BANK agree that cash in the amount of$4$99 yyrAi 21 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 acceptance.
5. Upon"acceptance,"as defined above in Paragraph 2, the sum required to secure
DEVELOPERas obligations under this Agreement shall be reduced to$63,909.68
and the BANK may withdraw from the escrow account$426,064.54 and may
pay the same to DEVELOPER or to DEVELOPER's order. 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. Following the disbursement
contemplated in this paragraph 5, the sum of$63,909.68 shall be
maintained in escrow until completion of the Warranty Period set forth in Paragraph 2 or
until Bank is instructed, in writing, by Municipality to disburse some or all of that sum to
Municipality, pursuant to Paragraph 6, below.
6. 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.
7. 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.
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 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.
10. 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.
11. 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.
12. 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.
13. This Agreement shall not only be binding upon the parties hereto, but also their respective
heirs, executers, administrators, successors, and assigns.
14. Upon request of DEVELOPER, but only at the sole discretion of the MUNICIPALITY, the
MUNICIPALITY may agree to reduce the amount required to secure 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 shall notify
the BANK in writing of such reduction in the amount of funds escrowed hereunder.
15. 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.
16. 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
liability incurred 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.
17. 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 (10)
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.
18. IN WITNESS WHEREOF, and intending to be legally bound, ,theme parties have set their
hands/and seals hereto as of the date or dates written belS?�' c
DATED at '`it' if 1�} > , Vermont, this q441day ICh
of 20
Rivers Edge Bldg Dev., LLC
I T E PRES N E OF:
Witness `duly Authorized Agent
nion Ban
IN THE PRESENCE OF:
By:
n ss u y u horiz Agent
IN THE PRESENCE OF: CITY F SOUTH BURLINGTON
rl B JJ 01/..fit
Witness Duly Athorized Agent
SON10-019 5-11-10 FORM INFRASTRUCTURE ESCROW AGR
5/11/10