HomeMy WebLinkAboutRes.3531.02-21-2023 BILL NO. 23-23 RESOLUTION N0.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A PERFORMANCE GUARANTEE AGREEMENT WITH
LILMAC, LLC, FOR PUBLIC SIDEWALK IMPROVEMENTS
AT LILMAC EAST THIRD ,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 Lilmac, LLC, for public
sidewalk improvements at Lilmac East Third Subdivision, 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 THISDAY OF � �ri,c �-a , 2023 .
Stacy Kinde yor
ATTEST :
Bruce Taylo , Deputy City Clerk
T UNI
PERFORMANCE GUARANTEE AGREEMENT
LILMAC EAST THIRD SUBDIVISION
(SIDEWALKS ONLY)
This Performance Guarantee Agreement, hereinafter referred to as this "Agreement", is
made and entered into this day of , 20 , by and between LILMAC,
LLC, a Missouri Limited Liability Company, having its principal office and place of business at
2559 Fieldstone Way, Jackson,Missouri, 63755, 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 is the owner of Lilmac East Third Subdivision, a proposed
subdivision located within the City of Cape Girardeau, Missouri, and has submitted to the City
improvement plans and specifications for said subdivision, which have been approved by the
City,and has submitted a record plat for said subdivision with request that said plat be 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 Parties stipulate and agree as follows:
1. The Developer has submitted to the City a record plat for Lilmac East Third Subdivision,
hereinafter referred to as the "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 the "Letter of Credit", has been
issued for the cost of the improvements in the Proposed Subdivision by Montgomery
Bank, N.A., hereinafter referred to as the "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
Page 1 of 5
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 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 Parties have executed this Agreement as of the above
date.
Page 2 of 5
.14,MAC, LLC
\).A tANAt
David M. McMullin, Manager
STATE OF VT\ a c:>—) )
) SS.
COUNTY OF Q . ea
On this v. day of V2.-t.‘z,. , 2001,), , before me personally appeared
David M. McMullin, Manager of Lilmac, LLC, a Missouri Limited Liability Company, known
by me to be the person described in and who executed the foregoing instrument, and
acknowledged that he executed the same as the free act and deed of said Limited Liability
Company for the purposes therein stated.
TN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
in said State and County, the date first above written.
\44-Lt.
,Notary Ptil5lic
Angela He u ring
My Commission Expires: Notary Public - Notary Seal
Scott County, Missouri
Commission # 12463382
Commission Expires 07/26/2024
Page 3 of 5
CITY OF CAPE GIRARDEAU,MISSOURI
Dr. Kenneth Haskin, City Manager
ATTEST:
City Clerk
STATE OF
) SS.
COUNTY OF
On this day of , 20 , before me personally appeared Dr.
Kenneth Haskin, City Manager of the City of Cape Girardeau, Missouri, a Municipal
Corporation of the State of Missouri, known by me 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 said State and County, the date first above written.
,Notary Public
My Commission Expires:
Page 4 of 5
EXHIBIT A
LETTER OF CREDIT
(on following page) 1
1
,I
i
Page 5 of 5
Montgomery
BANK
DATE: February 1,2022
FROM: Montgomery Bank, a Missouri Non—Fiduciary Trust Company
2027 Broadway
Cape Girardeau, Missouri 63701
TO: David McMullin
228 Pintail Pointe
Cape Girardeau, MO 63701
AND
City of Cape Girardeau, Missouri—Beneficiary
City Hall,401 Independence Street
Cape Girardeau,Missouri, 63701
IRREVOCABLE LETTER OF CREDIT #632
We hereby issue this Irrevocable Letter of Credit in your favor up to the aggregate
amount of sixty-three thousand, one hundred fifteen and 50/100 dollars ($63,115.50) available
upon your demand and upon the approval of Beneficiary—City of Cape Girardeau for the cost of
constructing the public sidewalks in the Lilmac East Third subdivision, according to the record
plat 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, Beneficiary—City of Cape
Girardeau may,pursuant to the procedures in the City ordinances, draw the balance of your
account required to complete said improvements.
FINANCIAL INSTITUTION
Montgomery Bank, a Missouri
Non-Fiduciary Trust Company
(Seal)
O
Telephone: 1-800-455-2275 • E-mail: customerservice@montgomerybank.corn
LENDER
46 • -
Jr P. Limbaugh
xecutive Vice President
Cape Girardeau Regional President
Accepted this -t day of t,‘o, ,2022
CUSTOMER-DEVELOPER
David McMullin
By:‘
David McMullin
Approved pursuant to Council action this day of ,2022
CITY
City of Cape Girardeau, Missouri
(Seal)
Dr. Kenneth Haskin, City Manager
1
STATE OF MISSOURI )
ss.
COUNTY OF CAPE GIRARDEAU )
On this 1 s\ day of Ft.b . , 2022,before me personally appeared James P.
Limbaugh,Regional President of Montgomery Bank, a Missouri Non-Fiduciary Trust Company
to me known to be the person described in and who executed the foregoing instrument, who
acknowledged that he executed the same as his free act and deed of said Bank.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed by official seal at
my office in said County and State the day and year first above written.
r i
Notary Pub is -
Angela Hewing
Name/My Commission Expires: Notary Public - Notary Seal
Scott County, Missouri
Commission # 12463382
Commission Expires 07/26/2024
STATE OF MISSOURI )
ss.
COUNTY OF CAPE GIRARDEAU )
On this day of F�,�„ , , 2022, before me personally appeared David McMullin
to me known to be the person described in and who executed the foregoing instrument, and
acknowledged that he executed the same as his free act and deed
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
at my office in said County and State the day and year first above written.
Notary Public
Name/My Commission Expires:
Angela Heuring
Notary Public - Notary Seal
Scott County, Missouri
Commission # 12463382
Commission Expires 07/26/2024
{
STATE OF MISSOURI )
ss.
COUNTY OF CAPE GIRARDEAU )
On this day of , 2022,before me personally appeared Kenneth Haskin,
to me personally known, who,being by me duly sworn, did say that he is the City Manager of
the City of Cape Girardeau, Missouri, a Municipal Corporate, and that the seal affixed to the
foregoing instrument is the seal of said City, and that said instrument was signed band 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 TESTIMONY WHEREOF,I have hereunto set my hand and affixed by official seal at
the State and County aforesaid, the date first above written.
Notary Public
Name/My Commission Expires:
J1