HomeMy WebLinkAboutRES.2555.09-07-2010BILL NO. 10-112
RESOLUTION NO. �` y
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE AN ESCROW AGREEMENT WITH FRONABARGER
CONCRETERS, INC., AND BANK OF MISSOURI, FOR
IMPROVEMENTS AT 824 SOUTH KINGSHIGHWAY, 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 an
Escrow Agreement with Fronabarger Concreters, Inc., and Bank of
Missouri, for improvements at 824 South Kingshighway. A copy of
said Agreement is attached to this Resolution and made a part
hereof.
PASSED AND ADOPTED THIS /'�A DAY OF Sgkmie, 20 I0
Ae�'� , - -
Harry E. ediger, Mayor
ESCROW AGREEMENT
This Escrow Agreement made and entered into this I day of _Se*k te-, 201 �' , by and
between Fronabarger Concreters, Inc., a Corporation organized and existing under the laws of the State
of Missouri, -having its principal office and place of business at 3290 State Highway E, Oak Ridge,
Missouri, 63769, hereinafter called Developer, and Bank of Missouri, 233 West Jackson, Boulevard,
Jackson, Missouri, 63755, hereinafter referred to as Escrow Agent and the City of Cape Girardeau,
Missouri, a municipal corporation, hereinafter referred to as City.
WITNESSETH:
WHEREAS, the Developer is the owner of 824 South Kingshighwav, property within the City of
Cape Girardeau, Missouri, and has submitted to the City improvement plans,
NOW, THEREFORE, In consideration of the foregoing and of the mutual promises and
agreements contained herein, the parties to this Escrow Agreement stipulate and agree as follows:
Developer is the owner of 824 South Kingshighwav, and has submitted to the City
improvement plans and specifications for the above specified address.
2. An irrevocable letter of credit has been issued for the cost of the improvements at the
above specified address by Bank of Missouri, hereinafter referred to as "Financial Institution". The
irrevocable letter of credit, a copy of which is labeled Exhibit "A" and is attached to this Escrow
Agreement and made a part hereof as though fully set out herein, has been placed in the possession of
Escrow Agent. Said irrevocable letter of credit is a commitment to the Developer from the Financial
Institution that it will serve as the primary lender for the development 824 South Kingshighwav and
commits itself for enough funds to complete the improvements at the above specified address.
3. A copy of the most recent financial statement of the Financial Institution is submitted for
the purpose of guaranteeing to the City that the Financial Institution as the issuer of the irrevocable letter
of credit to the Developer has sufficient resources with which to uphold its guarantee.
4. The Escrow Agent agrees to hold the original of the irrevocable letter of credit issued by
the Financial Institution subject to the provisions of this Agreement and the ordinances of the City of Cape
Girardeau, as they may appertain to the provisions of Escrow Agreements.
5. The Escrow Agent shall not release the irrevocable letter of credit deposited with him as
Escrow Agent by the Financial Institution for the proposed improvements except on the approval of the
Administrative Officer of the City and until the City Council is satisfied that the improvements for the
development of the above specified address has been completed in accordance with the plat and the
improvement plans and specifications of the above specified address and the Ordinances of the City of
Cape Girardeau.
6. The City may from time to time partially release the Escrow Agent from all or any part of
its obligations and shall do so by written notification from the City's Administrative Officer.
7. Upon approval by the City through its Administrative Officer for the release of all funds
held by the Escrow Agent, this agreement shall be terminated and the Developer and the Escrow Agent
shall be released from any further obligation to the City insofar as the provisions of this Escrow
Agreement are ccncemed.
8. In the event of the failure or refusal or inability of the Escrow Agent to serve as
determined by the Administrative Officer of said City, the City shall appoint a substitute who will have the
same responsibilities as the Escrow Agent named herein.
9. If, after two (2) years from the date of this agreement, all the improvements reflected by
the approved improvement plans and specifications have not been completed, the City may require the
Escrow Agent to remit to the City cash or negotiable instruments constituting the balance of the escrow
account required to complete the improvements.
10. This Escrow Agreement shall not in any fashion be construed to limit the powers, rights,
or duties of City, but said agreement shall be construed in the light of the ordinances of the City of Cape
Girardeau, Missouri, regarding the development of property.
11. No part of this agreement may be assigned by the Escrow Agent or the Developer
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 parties have executed this instrument in triplicate as of the day and
year first herein written.
ATTEST:
[Signature]
[Seal]
ATTEST:
Gayle L. Conrad, City Clerk
STATE OF MISSOURI
ss.
COUNTY OF CAPE GIRARDEAU
DEVELOPER
Fronabaroer Concreters, Inc.
[Typed Na a of Develop
[Sig ature]
Dave McMullin Managinq Member
SW
AGENT
(Signature]
Larry Hall, Vice -President, Bank of Missouri
CITY OF CAPE GIRARDEAU, MISSOURI
Scott A. Meyer, City Manager
BE IT REMEMBERED, That on this _ `} `� day of a it1�' I(YZt 2 1/ 2010
before me, the undersigned, a Notary Public in and for the County ande5tate aforesaid, came Dave
McMullen, to me personally known, who, being by me duly swum, did state that he is a Managing
Member of Fronabarger Concreters, and that said instrument was signed in behalf of said company for
the consideration stated therein and no other, and said Dave McMullen, acknowledged said instrument to
be the free act and deed of said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and
year last above written. CA 10 1 h0 s1 .(0
JULIE Notary Public— Notary Seal � 1 N GARCIAP_ C-7� � 1 ��x 1rc_k c-,
STATE OF MISSOURI
Cape Girardeau County
Commissiou # 07214141
My Commission Expires: Aug. 23, 20
[Typed Name of Notary Public]
STATE OF MISSOURI )
ss.
COUNTY OF CAPE GIRARDEAU )
BE IT REMEMBERED, That on this day of '�0 �)_ l l�lo f 2010
before me, the undersigned, a Notary Public in and for the County and State aforesaid, came Lary Hall,
to me personally known, who, being by me duly sworn, did state that he is the Vice -President of Bank of
Missouri, and that said instrument was signed in behalf of said company for the consideration stated
therein and no other, and said Larry Hall acknowledged said instrument to be the free act and deed of
said company.
IN WITNESS WHEREOF, I have hereunto se y hand and affixed my official seal, the day and
year last above written. AQ -
RC'
JULIE Arlty cAxc1A 4 1, i r
Notaly l'ubbe-No Seal [Typed Name of Notary Public]
STATF, OF 1IIS30URI
Cape Girazdeau Countyry
Commission # 07214f}¢1 ++
MY Commission Expires:21 20 i !
STATE OF MISSOURI )
ss.
COUNTY OF CAPE GIRARDEAU )
On this day of , 2010, before me appeared Scott A. Meyer, to
me personally known, who, being by me duly swam, did say that he is the City Manager of the City of
Cape Girardeau, Missouri, a Municipal Corporation of the State of Missouri, and that the seal affixed to
the foregoing instrument is the seal of said City and that the said instrument was signed and sealed in
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 TESTIMONY WHEREOF, i have hereunto set my hand and affixed my official seal, at my
office in Cape Girardeau, Missouri, the day and year first above written.
My Commission Expires:
IRREVOCABLE LETTER OF CREDIT EXHIBIT A
Borrower: FRONABARGER CONCRETERS, INC. Lender- The Bank of Missouri
3290 STATE HWY E Jackson Branch
OAK RIDGE, MO 63769-5100 233 W Jackson Blvd
Jackson, MO 63755
Beneficiary: CITY OF CAPE GIRARDEAU
NO.: 132482
EXPIRATION DATE. This letter of credit shall expire upon the earlier of the close of business on 09-01-2012 and all drafts and accompanying
statements or documents must be presented to Lender on or before that time, or the day that Lender honors a draw under which the full amount
of this Letter of Credit has been drawn (the 'Expiration Date').
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 Ninety-four Thousand & 001100 Dollars ($94;000.00) (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: Each draft so
drawn must be. marked "Drawn under The Bank of Missouri Letter of Credit No. 132482," and be accompanied by a signed statement of City of
Cape Girardeau, Missouri that Fronabarger Concreters, Inc. has failed to fulfill the obligations of their contract.
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 The Bank of Missouri IRREVOCABLE LETTER OF CREDIT NO. 132482
DATED 09-01-2010," and the amount of each draft shall be marked on the draft. Only Beneficiary or Beneficiary's transferee 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. This Letter of Credit may be transferred by Beneficiary upon prior written notice to Lender of the transfer. The
transferee shall be deemed the new Beneficiary of this Letter of Credit and the documents of the transferee, including drafts required under this
Letter of Credit, will be processed by Lender (or any intermediary) without the original Beneficiary's intervention and without any further
obligation of Lender to the original Beneficiary.
TRANSFEREES REQUIRED DOCUMENTS. When the presenter is a permitted transferee under the "Permitted Transferees" paragraph above (the
"Permitted Transferee'), the documents required for a draw shall include all documents required elsewhere in this Letter of Credit, except that
such documents may be in the name of and executed by either the original Beneficiary or the presenter permitted by the "Permitted Transferees"
paragraph above.
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.
NOWSEVERABILITY. 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, IGC 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: September 1, 2010
EXHIBIT A
IRREVOCABLE LETTER OF CREDIT
Loan No: 132482 (Continued) Page 2
LENDER:
THE BANK OF MISSOURI
Authorized Officer
ENDORSEMENT OF DRAFTS DRAWN:
Amount Amount
Date Negotiated By In Words In Figures
USER PHO La a. Vu. 5.52.10.001 Ce H Od 4 -. 1991, 2010. All Hia— Rwarnd - VO C:q.Pv MCFlLLR\C43LOC-FL IR19901—S,OCO1,413