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Res.3251.04-01-2019
BILL NO. 19-51 RESOLUTION NO. -3,)5 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A PERFORMANCE GUARANTEE AGREEMENT WITH LIBERTY APARTMENTS OF CAPE, LLC, FOR LIBERTY SUBDIVISION, 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 Liberty Apartments of Cape, LLC, for Liberty Subdivision, 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 DAY OF 2019. Bob Fox, Mayor ATTEST: y City Clerk G4e-L. C)n (,Qd RELEASE OF PERFORMANCE GUARANTEE AGREEMENT LIBERTY SUBDIVISION This Release is made this da of y , 2020, by the CITY OF CAPE GIRARDEAU, MISSOURI, 401 Independence , Cape Girardeau, MO 63703, hereinafter referred to as the "City", to LIBERTY APARENTS OF CAPE, LLC, hereinafter referred to as the "Developer" WITNESSETH: On March 26, 2019, the City and the Developer entered into a Performance Guarantee Agreement for public improvements in Liberty Subdivision, in the City of Cape Girardeau, Missouri. The City Council of the City of Cape Girardeau, Missouri, has determined that all of the work covered by the Performance Guarantee Agreement for public improvements in said subdivision, as set out in the improvement plans and specifications therefore, has been satisfactorily completed. NOW, THEREFORE, in consideration of the satisfactory completion of all of the public improvements set forth in the plans and specifications for said subdivision, the City hereby authorizes the release of the full balance of the secured amount pursuant to the Performance Guarantee Agreement. Furthermore, the Developer is hereby discharged from any further obligations to the City under the Performance Guarantee Agreement, which is hereby canceled and terminated. IN WITNESS WHEREOF, this Release has been executed on the above date. CITY OF CAPE PHU)tbEAU, MISSOURI A. Mer, , Cit4 Manager ATTEST 1 101 City Clerk {NOTARY ON FOLLOWING PAGE} v �T STATE OF MISSOURI ss. COUNTY OF CAPE GIRARDEAU ) BE IT REMEMBERED, that on this y day of 20, before me, the undersigned notary public, personally appeared Scott A. Mey eing by me duly sworn, did state that he is the City Manager of the City of Cape Girardea issouri, a Municipal Corporation, and that the seal affixed to the foregoing instrument is the s al of said City, and that said instrument was signed and sealed on behalf of said City by authority of its City Council, and acknowledged said instrument to be the free act and deed of said City IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the State and County aforesaid, the date first above written Name/My Commission Expires. ';� I 1 I t/ V AMANDA L. MCKINNEY Fotary Public - Notary Seal STATE OF MISSOURI Cape Girardeau County My Commission Expires March 3, 2022 Commission #14588193 K PERFORMANCE GUARANTEE AGREEMENT This Performance Guarantee Agreement, hereinafter referred to as "Agreement", is made and entered into this day of 2 2019, by and between LIBERTY APARTMENTS OF CAPE, LLC, a Missouri Limited Liability Company, having its principal office and place of business at 937 Broadway, Suite 306, 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 Liberty Subdivision, 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 Liberty Subdivision, 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 Banterra 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. 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. 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 Liberty Apartments of Cape, LLC 144, Aj W, &M, Melissa Stickel, Registered Agent STATE OF Yt ) ss. COUNTY OF0AW,6(V0 ) On this ak day of H04A , 2019, before me personally appeared Melissa Stickel, Registered Agent of Liberty Apartments of Cape, LLC, 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 TYREE B. CHAPMAN N ry STATEOF OF Notary RI eI S1 cot my C � t 3, 2021 Name/My Commission Expires: F -013 �1 Page 3 of 5 ATTEST: � °(PIu,aZ CITY City of A. UL City Clerk, Gjy1mc+ ©I STATE OF MISSOURI ) ss. Po COUNTY OF CAPE GHUMEAU 1 Missouri On this this !? day of �I , 2019, before me personally appeared Scott A. Meyer, City Manager of the City of Cape Girardeau, Missouri, a Missouri Municipal Corporation, to me known to be the person described in and who executed the foregoing instrument, and acknowledged that the foregoing 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 written. Name/My Commission Expires: 3 1a) Page 4 of 5 EXHIBIT A IRREVOCABLE LETTER OF CREDIT (on following page) Page 5 of 5 IRREVOCABLE LETTER OF CREDIT Borrower: LIBERTY APARTMENTS OF CAPE LLC (TIN: Lender: BANTERRA BANK 83-2259085) CAPE GIRARDEAU OFFICE 937 BROADWAY STE 306 1650 N KINGSHIGHWAY, STE 101 CAPE GIRARDEAU, MO 63701 CAPE GIRARDEAU, MO 63701 Beneficiary: CITY OF CAPE GIRARDEAU 401 INDEPENDENCE ST CAPE GIRARDEAU, MO 63703 NO.: 86551 EXPIRATION DATE. This letter of credit shall expire upon the close of business on 03-21-2020 and all drafts and accompanying statements or documents must be presented to Lender on or before that time (the "Expiration Date"). The Expiration Date shall be automatically extended for one (1) year from the Expiration Date, and likewise thereafter one (1) year from any such extended expiration date, unless not less than Thirty (30) days prior to the Expiration Date or any extended Expiration Date, Lender shall send written notice that it has elected not to further extend the Expiration Date. In no event shall the Expiration Date extend beyond March 21, 2022. AMOUNT OF CREDIT. Lender hereby establishes at the request and for the account of Borrower, an Irrevocable Letter of Credit in favor of Beneficiary for a sum of Eighty-two Thousand Eight Hundred Forty-seven & 00/100 Dollars ($82,847.00) (the "Letter of Credit"). These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's address indicated above (or other such address that Lender may provide Beneficiary in writing) during regular business hours and accompanied by the signed written statements or documents indicated below. WARNING TO BENEFICIARY. PLEASE EXAMINE THIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS REQUIREMENTS, EITHER SINGLY OR TOGETHER, YOU SHOULD CONTACT BORROWER IMMEDIATELY TO SEE IF THE LETTER OF CREDIT CAN BE AMENDED. OTHERWISE, YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURE TO COMPLY STRICTLY WITH ITS TERMS AS WRITTEN. DRAFT TERMS AND CONDITIONS. Lender shall honor drafts submitted by Beneficiary under the following terms and conditions: Upon Lender's honor of such drafts, Lender shall be fully discharged of Lender's obligations under this Letter of Credit and shall not be obligated to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has been drawn. Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other document which complies strictly with this Letter of Credit, and which on its face appears otherwise in order but which is signed, issued, or presented by a party or under the name of a party purporting to act for Beneficiary, purporting to claim through Beneficiary, or posing as Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit, Lender makes no representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary, or any other person, for any amount paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by Beneficiary of the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not and will not present upon the other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds received by Beneficiary in excess of the Letter of Credit's maximum drawing amount. USE RESTRICTIONS. All drafts must be marked "DRAWN UNDER BANTERRA BANK IRREVOCABLE LETTER OF CREDIT NO. 86551 DATED 03-22-2019," and the amount of each draft shall be marked on the draft. Only Beneficiary may complete a draft and accompanying statements or documents required by this Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any draft drawn hereunder. Partial draws are permitted under this Letter of Credit. Lender's honor of a partial draw shall correspondingly reduce the amount of credit available under this Letter of Credit. Following a partial draw, Lender shall return this original Letter of Credit to Beneficiary with the partial draw noted hereon, in the alternative, and in its sole discretion, Lender may issue a substitute Letter of Credit to Beneficiary in the amount shown above, less any partial draw(s). PERMITTED TRANSFEREES. The right to draw under this Letter of Credit shall be nontransferable, except for: A. A transfer (in its entirety, but not in part) by direct operation of law to the administrator, executor, bankruptcy trustee, receiver, liquidator, successor, or other representative at law of the original Beneficiary; and B The first immediate transfer (in its entirety, but not in part) by such legal representative to a third party after express approval of a governmental body (judicial, administrative, or executive). TRANSFEREES REQUIRED DOCUMENTS. When the presenter is a permitted transferee (i) by operation of law or (ii) a third party receiving transfer from a legal representative, as described above, the documents required for a draw shall include a certified copy of the one or more documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary. COMPLIANCE BURDEN. Lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of this Letter of Credit precisely as written. Beneficiary understands and acknowledges: (i) that unless and until the present wording of this Letter of Credit is amended with Lender's prior written consent, the burden of complying strictly with such wording remains solely upon Beneficiary, and (ii) that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval of such wording. NON -SEVERABILITY. If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental body having jurisdiction, Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio, and both Lender and Beneficiary shall be restored to the position each would have occupied with all rights available as though this Letter of Credit had never occurred. This non -severability provision shall override all other provisions in this Letter of Credit, no matter where such provision appears within this Letter of Credit. GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of Missouri without regard to its conflicts of law provisions, and except to the extent such laws are inconsistent with the 2007 Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce, ICC Publication No. 600. This Agreement has been accepted by Lender in the State of Missouri. EXPIRATION. Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored if presented to Lender on or before the Expiration Date unless otherwise provided for above. Dated: March 22, 2019 LENDER: B NTERRA BA 11 Y. Authorized Si er ENDORSEMENT OF DRAFTS DRAWN: Amount Amount Date Negotiated By In Words In Figures U—Pm Va 1910018 Cop FNn USA CM—Uon 1997.2019 NI Rig-R—ed -MO 'WPPS%CRSETUMRC L1CL7LOCFC TR -0 51 PR -1/(M)