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Home My WebLink AboutRes.3233.02-04-2019 BILL NO. 19-22 RESOLUTION NO. 3,23 :5 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A PERFORMANCE GUARANTEE AGREEMENT WITH EED DEVELOPMENT, L. L.C. , FOR THE LOCHS AT DALHOUSIE - PHASE V, IN THE CITY OF CAPE GIRARDEAU, MISSOURI BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1 . The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute a Performance Guarantee Agreement with EED Development, L.L.C. , for The Lochs at Dalhousie - Phase V, in the City of Cape Girardeau, Missouri . The Agreement shall be in substantially the form attached hereto as Exhibit A, which document is hereby approved by the City Council, and incorporated herein by reference, with such changes therein as shall be approved by the officers of the City executing the same. PASSED AND ADOPTED THIS Y' DAY OF / - srU 2019. Bob Fox, ayor ATTEST: ,..r•roro• �� _ //` ruce Taylo D puty City Clerk J err ,,� ea, PERFORMANCE GUARANTEE AGREEMENT This Performance Guarantee Agreement, hereinafter referred to as "Agreement", is made and entered into this 115"*''` day of 'Towka v% , 2019, by and between EED DEVELOPMENT, L.L.C., a Missouri Limited Liabi ity Company, having its principal office and place of business at 124 Crosshill Court, Cape Girardeau, Missouri 63701, hereinafter referred to as "Developer", and the CITY OF CAPE GIRARDEAU, MISSOURI, a Missouri Municipal Corporation, hereinafter referred to as "City". WITNESSETH: WHEREAS, the Developer is the owner of The Lochs at Dalhousie — Phase V, a proposed subdivision located within the City of Cape Girardeau, Missouri, and has submitted to the City improvement plans and specifications, which have been approved by the City, and has submitted a record plat with request that said plat and the plans and specifications for the improvements in the proposed subdivision be accepted and approved by the City; and WHEREAS, the Developer proposes to meet the ordinance requirements of the City with respect to the posting of this Agreement prior to the approval by the City of the plat proposed for said subdivision, NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and agreements contained herein, the Developer and the City stipulate and agree as follows: 1. The Developer has submitted to the City a record plat of The Lochs at Dalhousie — Phase V, hereinafter referred to as "Proposed Subdivision", with request that said plat be approved by the City. The Developer has also submitted improvement plans for the Proposed Subdivision, which have been approved by the City. 2. An Irrevocable Letter of Credit, hereinafter referred to as "Letter of Credit", has been issued for the cost of the improvements in the Proposed Subdivision by Montgomery Bank, hereinafter referred to as "Financial Institution". The Letter of Credit is attached to this Agreement as "Exhibit A" and made a part hereof as though fully set out herein. The Letter of Credit is a commitment to the Developer from the Financial Institution that it will serve as the primary lender for the development of the Proposed Subdivision and commits itself for enough funds to complete the improvements in the Proposed Subdivision. Further, the Letter of Credit lists the City as the Beneficiary and provides for payment of funds to the City in the event the Developer is found to be in default under this Agreement. 3. A copy of the most recent financial statement of the Financial Institution is made available for the purpose of guaranteeing to the City that the Financial Institution, as the issuer of the Letter of Credit to the Developer, has sufficient resources with which to uphold its guarantee. Page 1 of 5 4. The City may, from time to time, authorize a reduction in the balance of the Letter of Credit and shall do so by written notification from the City's Administrative Officer. 5. Upon approval by the City through its Administrative Officer for the release of the remaining balance of the Letter of Credit, this Agreement shall be terminated and the Developer and the Financial Institution shall be released from any further obligation to the City insofar as the provisions of this Agreement are concerned. 6. If, after two (2) years from the date of this Agreement, all the improvements shown on the approved improvement plans and specifications have not been completed, the City may request payment from the balance of the Letter of Credit as required in order to complete the improvements. Said request for payment shall be per the terms of the Letter of Credit. 7. This Agreement shall not in any fashion be construed to limit the powers, rights, or duties of the City, but shall be construed in the light of the applicable City ordinances. 8. No part of this Agreement may be assigned by the Developer or the Financial Institution without first obtaining the express written consent of such assignment by the City, but the City agrees not to unreasonably withhold such consent. IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as of the above date. Page 2 of 5 DEVELOPER EiiDevelo ment,t, L.L. Elizabeth Dombrowski, Managing Member STATE OF�i,5SUynj ) /) ss. COUNTY OF On this "'day of Tqn u(w,ny , 2019, before me personally appeared Elizabeth Dombrowski, Managing Member of EED Development, L.L.C., a Missouri Limited Liability Company, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that she executed the same as the free act and deed of said Limited Liability Company. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the State and County aforesaid, the date first above written. No y Public Name/My Commission Expires: Tyler Myers Notary Public Notary Seal state of Missouri Cape Girardeau County Commission #15636955 :',ommission Expires 10109/2022 Page 3 of 5 CITY City of Ca.- 'irardeau issouri (Seal) eye ag•r ATTEST: f` (n •-• ,,,,,‘„, , „if: ,4,/ ,: :. , . .„,, , ., ‘,r‘7_(? Bruce Taylor,Ireuty City Clerk �, ,'� 1 f, J STATE OF MISSOURI ) ,_ �' • % ) ss. :_ COUNTY OF CAPE GIRARDEAU ) On this this ( )ay of 4ki :\,.11 2019, before me personally appeared Scott A. Meyer, City Manager of the City of rWrGirardeau, Missouri, a Missouri Municipal Corporation, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that the forego',g instrument was signed and sealed on behalf of said City by authority of its City Council, and acknowledged that he executed the same as the free act and deed of said City. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the State and County aforesaid, the date first above wri en. i __ifi ll: IA 11( „ (Lis Note• is Name/My Commission Expires: lir AMANDA L. MCKINNEY �11 Notary Public- Notary Seal STATE OF MISSOURI Cape Girardeau County My Commission Expires March 3, 2022 Commission #14588193 Page 4 of 5 EXHIBIT A IRREVOCABLE LETTER OF CREDIT (on following page) Page 5 of 5