HomeMy WebLinkAboutRes.3529.02-21-2023 BILL NO. 23-21 RESOLUTION NO.
w.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A PERFORMANCE GUARANTEE AGREEMENT WITH
EED DEVELOPMENT, L.L.C. , FOR PUBLIC SIDEWALK
IMPROVEMENTS AT 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 public sidewalk improvements at The Lochs at Dalhousie -
Phase V, in the City of Cape Girardeau, Missouri . The Agreement
shall be in substantially the form attached hereto, which
document is hereby approved by the City Council, and
incorporated herein by reference, with such changes or
amendments as shall be approved by the officers of the City
executing the same.
PASSED AND ADOPTED THIS c. DAY OF �Lti. � , 2023.
Stacy Ki d r, ayor
ATTEST:
Bruce Tayl , Deputy City Clerk
x
PERFORMANCE GUARANTEE AGREEMENT
THE LOCHS AT DALHOUSIE—PHASE V
SIDEWALK IMPROVEMENTS
This Performance Guarantee Agreement, hereinafter referred to as this "Agreement", is
made and entered into this 3rd day of February , 2023, by and between EED
DEVELOPMENT, L.L.C., a Missouri Limited Liability Company, having its principal office
and place of business at 124 Crosshill Court, Cape Girardeau, Missouri 63701, hereinafter
referred to as the "Developer", and the CITY OF CAPE GIRARDEAU, MISSOURI, a
Municipal Corporation of the State of Missouri, hereinafter referred to as the "City". The
Developer and the City collectively are hereinafter referred to as the"Parties".
WITNESSETH:
WHEREAS, the Developer has submitted to the City, and the City has approved, the
record plat of The Lochs at Dalhousie —Phase V, a subdivision located within the City of Cape
Girardeau,Missouri; and
WHEREAS, the Developer and the City previously entered into an agreement for
establishing a performance guarantee in lieu of the Developer constructing certain public
improvements in said subdivision prior to the approval of said record plat by the City; and
WHEREAS, said agreement has expired; and
WHEREAS, the Parties wish to execute this Agreement to replace the expired agreement
and to establish a new performance guarantee for constructing the public sidewalks in said
subdivision.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and
agreements contained herein,the.Parties stipulate and agree as follows:
1. The Developer has submitted to the City, and the City has approved, improvement plans
for the public sidewalks in said The Lochs at Dalhousie—Phase V, hereinafter referred to
as the"Subdivision".
2. Montgomery Bank, hereinafter referred to as the "Financial Institution", has issued an
Irrevocable Letter of Credit, hereinafter referred to as the "Letter of Credit", for the cost
of the public sidewalk improvements in the Subdivision. 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 construction of the public sidewalks in the
Subdivision and commits itself for enough funds to complete said sidewalks. 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.
Page 1 of 5
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.
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 of the public sidewalks shown
on the approved improvement plans have not been constructed, the City may request
payment from the balance of the Letter of Credit as required in order to construct the
missing sidewalks. 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 Parties have executed this Agreement as of the above
date.
Page 2 of 5
DEVELOPER
EED Development,L.
z
izabeth Dombrowski,Managing Member
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this Is day of reh/Unrl , 2023, 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.
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Page 3 of 5
CITY
City of Cape Girardeau;Missouri
Dr. Kenneth Haskin, City Manager
ATTEST:
City Clerk
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this this day of , 2023, before me personally appeared Dr.
Kenneth Raskin, City Manager of the City of Cape Girardeau, Missouri, a Municipal
Corporation of the State of Missouri, to me known to be the person described in and who
executed the foregoing instrument, and who 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.
Notary Public
Name/My Commission Expires:
Page 4 of 5
EXHIBIT A
LETTER OF CREDIT
on following page(s)
1
1
Page 5 of 5
•
•
Montgomery
BANK
P.O. Box 948 ,
•
Sikeston, MO 63801 , .. ; •
DATE: February 3, 2023
FROM: Montgomery Bank, a Missouri Non-Fiduciary Trust Company
TO: EED Development,L.L.C.
124 Crosshill Court
Cape Girardeau, MO 63701.
•
AND
•
City of Cape Girardeau, Missouri (Beneficiary)
44 North Lorimier Street •
Cape Girardeau, MO 63701
IRREVOCABLE LETTER OF CREDIT #637
We hereby issue this Irrevocable Letter of Credit in your favor up to the aggregate
amount of Sixty-Six Thousand ,Six Hundred Fifty-Two and 60/100, dollars,
($66,652.60) available upon your demand and 'upon the approval of the City of Cape
Girardeau (Beneficiary) for the cost of constructing the public sidewalks at Lochs at
Dalhousie Phase V according to the recordplat and improvement plans and
specifications on file at the City of Cape Girardeau. If you do not complete the
improvements as specified within ;two (2) years, the City of Cape Girardeau
(Beneficiary) may, pursuant to the procedures in the City ordinances, draw the
balance of your account required to complete said improvements.
Montgomery Bank, a Missouri
Non-Fiduciary Trust Company
•
By:
lam . Lim augh
Exec tive Vice President
Cape Girardeau Regional President
•
One Montgomery Bank Plaza, Sikeston, Missouri 63801
Phone (573)•335-4443 • Fax (573) 986-5518