2012-222
2012-222
Resolution Accepting and Irrevocable Letter of Credit as Replacement of the Cash Bond
Previously Submitted in Connection with the Silver Fox Estates Subdivision
At a regular meeting of the Town Board ofthe Town of Wappinger, Dutchess County,
New York, held at Town Hall, 20 Middlebush Road, Wappingers Falls, New York, on August
13,2012.
The meeting was called to order by Barbara Gutzler, Supervisor, and upon roll being
called, the following were present:
PRESENT: Supervisor
Councilmembers
Barbara Gutzler
William H. Beale (Arrived at 7:31PM)
Vincent F. Bettina (Arrived at 7:47 PM)
Ismay Czarniecki
Michael Kuzmicz
ABSENT:
The following Resolution was introduced by Councilman Bettina and seconded by
Councilwoman Czarniecki.
WHEREAS, the Town of Wappinger Planning Board received an application from Chris
Sallecito for a subdivision of lands more particularly described in a Subdivision Plat entitled
Silver Fox Estates, prepared by Lawrence J. Paggi, P.E., last dated September 21,2011 (the
"Project"); and
WHEREAS, by Resolution dated June 4,2012 (the "Approval Resolution"), the Town of
Wappinger Planning Board granted Final Conditional Subdivision Approval for the Project
subject to certain conditions set forth therein, including, among other things, completion of
certain public improvements and provision of security to the Town therefor; and
WHEREAS, the Applicant previously deposited with the Town a check in the amount of
One Hundred Thirty Thousand dollars and nolI 00 ($130,000.00) as security for completion of
the public improvements as required (the "Original Security"); and
WHEREAS, the Applicant previously submitted, and the Town Board accepted, a
Performance Agreement and Bond, secured by the Original Security, as a guaranty of
Applicant's completion of the public improvements as required by the Approval Resolution and
NYS Town Law 9277 (the "Original Performance Agreement"); and
WHEREAS, the Applicant now desires to substitute and replace the Original Security
with an irrevocable letter of credit in the amount of One Hundred Thirty thousand dollars and
noll 00 ($130,000.00); and
WHEREAS, Applicant has offered to the Town Irrevocable Standby Letter of Credit,
No. 21207204 from Rhinebeck Bank, having an address at 2 Jefferson Plaza, Poughkeepsie,
New York 12601 in favor ofthe Town of Wappinger, and in the amount of one hundred and
thirty thousand dollars and nolI 00 ($130,000.00) (the "Letter of Credit"); and
WHEREAS, the Applicant has offered the Town a new Performance Agreement and
Bond to be secured by the Letter of Credit (the "Replacement Performance Agreement") and
which shall replace the previously accepted Original Performance Agreement secured by the
Original Security; and
WHEREAS, Scott L. Volkman, the attorney for the Town, has reviewed the Letter of
Credit and has found it to be satisfactory;
NOW, THEREFORE, BE IT RESOLVED, as follows:
1. The recitations above set forth are incorporated in this Resolution as if fully set
forth and adopted herein.
2. Rhinebeck Bank Irrevocable Standby Letter of Credit No. 21207204 dated August
_,2012 in favor ofthe Town of Wappinger, is hereby accepted as security for
the obligations set forth in the Approval Resolution, in the Performance
Agreement and pursuant to Town Law 9277.
3. The Replacement Performance Agreement signed by the Applicant on August _'
2012 and secured by the Letter of Credit is hereby accepted by the Town Board.
4. The Town Clerk is hereby authorized and directed to return the Original Security
in the amount of $130,000, and the Original Performance Agreement, to the
Applicant, having been replaced by the Letter of Credit and Replacement
Performance Agreement.
5. The Town Clerk is hereby directed to retain the Letter of Credit and Replacement
Performance Agreement in her official files until such time as it may be drawn
upon or released.
The foregoing was put to a vote which resulted as follows:
BARBARA GUTZLER, SUPERVISOR
WILLIAM H. BEALE, COUNCILMAN
VINCENT F. BETTINA, COUNCILMAN
ISMA Y CZARNIECKI, COUNCILWOMAN
MICHAEL KUZMICZ, COUNCILMAN
Voting:
Voting:
Voting:
Voting:
Voting:
AYE
AYE
AYE
AYE
AYE
Dated: Wappingers Falls, New York
8/13/2012
The Resolution is hereby duly declared adopted.
CfuuUz~
CHRISTINE FULTON, TOWN CLERK
"
Leonard Klein
Arthur L. Gellert
John A, Geoghegan
Lillian S. Weigert
Scott l. Volkman
David R. Wise"
Roderick J. Macleod
Bevin S. Harrington
Kelly L. Traver*
Robert E. Noe
Pamela B. Richardson.
Elizabeth M Corrado
... Gellert & Kleiup.c
~ Attorneys at Law
75 Washington Street. Poughkeepsie, NY 12601
(845) 454-3250
(845) 454-4652 fax
Westchester County Office
3010 Westchester Avenue Suite 302
Purchase, NY 10577
(914) 249-0100
(914) 249-0111 fax
Columbia County Office
2210 Route 7
Copake, NY 12516
(518) 329-1533 tel/fax
Counsel
Stephen E. Ehlers
S. Nina Gellert
Raina E. Maisselo
Justice George D. Marlow
Appellate Division (Ret.)
Senator Stephen M. Saland
Robert C. Vincent. Jr.
Joseph H. Gellert
(1907-1989)
www.g~~gii~t 8, 2012
"Also Admitted in a
AAlso Admitted in NJ
oAlso Admitted in England
V ia E-mail
Town of Wappinger
Town Board
20 Middlebush Road
Wappingers Falls, NY 12590
Attn: Ms. Christine Fulton,
Town Clerk
Re: Silver Fox Subdivision
Replacement Security and Performance Bond
Final Conditional Planning Board Approval ~anted June 4.2012
Dear Ms. Fulton:
In connection with the above noted subdivision approval, on July 9, 2012, the
Town Board approved and accepted performance agreement and cash bond securing the
applicant's performance of its obligations as required by the subdivision approval
resolution. The applicant now wishes to replace the cash bond with a letter of credit, in
the same amount. Because the performance agreement was secured by the cash bond, a
new performance agreement secured by the letter of credit is also required.
Therefore, enclosed for your review and consideration please find the following
documents:
Rhinebeck Bank Letter of Credit No. 21207204, replacing the cash bond in
the amount of$130,OOO.00;
Replacement Performance Agreement secured by the Letter of Credit; and
Resolution accepting Letter of Credit and replacement Performance
Agreement;
F:\USER\clients\W\Wappinger - Town\Planning Board\Silver Fox\ltr to Town Clerk 8.8-12.doc
filii Gellert & Klein,p.e.
~ Attorneys at Law
Ms. Christine Fulton
AUl,'Ust 8, 2012
Page 2
This office has reviewed the letter of credit and performance agreement and finds
them to be acceptable.
Please note on July 9,2012, the Town Board also approved and accepted the
Irrevocable Offer of Cession and Dedication, the deeds for Losee and Scotse Roads, a
drainage easement and snow easement, all in connection with this subdivision approval.
These documents and the instructions contained in our July 3,2012 and July 9, 2012
letters to the Town are unaffected by the replacement documentation submitted herein.
We respectfully request that the above resolution be included on the August 13,
2012 Town Board agenda for consideration at that time.
Thank you for your assistance. Should you have any questions, please contaCt the
undersigned.
Very truly yours,
By:
Ene.
Cc: Scott L. Volkman, Esq.
Kenneth Stenger, Esq.
Robert Gray, P .E.
F:\lJSER\clients\W\Wappinger - Tov;l1\Plllnning Board\Silver Fox\ltr to Town Clerk 8-8-12.doc
REPLACEMENT PERFORMANCE AGREEMENT AND BOND
Bond given by MID-HUDSON HOLDINGS, LLC. having a mailing address at PO Box 636,
Fishkill, New York 12524, and a physical address at 5 Willard Court, Poughquag, New York, 12570
("Obligor") to the Town of Wappinger, a municipal corporation whose Town Hall is located at 20
MiddIebush Road, Wappingers Falls, New York 12590 ("Obligee"), dated AugustK, 2012.
KNOW ALL MEN BY THESE PRESENTS that the Obligor is held and firmly bound unto the
Obligee in the sum of one hundred and thirty thousand dollars and no/lOO ($130,000.00) for the
payment whereofto Obligee that said Obligor binds itself, its successors and assigns.
WHEREAS, the Obligor has made application to the Town of Wappinger Planning Board for
approval of the subdivision oflands more particularly described in the Subdivision Plat entitled "Silver
Fox Estates, Final Subdivision Plan", prepared by Lawrence J. Paggi, P.E. dated March 21, 2011, last
revised September 21,2011 (the "Subdivision"); and
WHEREAS, the Town of Wappinger Planning Board granted final conditional subdivision
approval to Obligor pursuant to Resolution dated June 4, 2012, subject to certain conditions including
certain public improvements being made and constructed within said subdivision as set forth in the
construction documentation prepared and submitted in connection with the Subdivision application, and
subject to completion of and/or the compliance with, the requirements set forth in the Town of Wappinger
Subdivision Regulations, Highway Specifications, Zoning Law (including compliance with escrow
deposits), and Municipal StOlmwater Management law; and
WHEREAS, pursuant to New York Town Law Section 277 and the specifications approved by
the Planning Board in connection with final subdivision approval, the Obligor must construct, install and
dedicate such roads and public improvements required by the Resolution of Subdivision Approval prior to
issuance of any building permits; and
WHEREAS, the Obligor's subdivision approval is subject to a condition that a performance bond
be given guaranteeing the construction and installation of the improvements as shown on the Engineer's
REPLACEMENT Perfonnance Agreement and Bond g.. 7-12.doc 1
Estimate attached hereto and made a part hereof; and
WHEREAS, the Town Board of the Town of Wappinger has received recommendations in that
regard from its engineering consultants, Morris Associates dated June 19,2012; and
WHEREAS, to secure the obligations to guarantee construction, installation and dedication of
the required public improvements and obligations, and compliance with required escrow deposits, Obligor
has agreed to submit to the Town, an irrevocable letter of credit in the amount of one hundred and thirty
thousand dollars and no/100 ($130,000.00) (the "Security");
NOW, THEREFORE, the condition of this performance obligation is such that, if the Obligor
shall well and truly make all of the aforesaid improvements in accordance with the rules and regulations
of the Town of Pleasant Valley and the Engineer's Estimate, and the specifications set forth in
connection with the Subdivision, and if said improvements are deemed complete by the Town of
Wappinger and are accepted by the Town of Wappinger on or before July 9,2014, then this obligation
shall be null and void; otherwise, the obligation shall remain in full force and effect after said time.
The Obligor shall at all times provide the Obligee with such security or surety as the Obligee
shall deem sufficient In compliance with the requirements of this Bond the Obligor has, as Security for
the proper and timely performance of the obligations herein, has provided the Obligee with an Irrevocable
Standby Letter of Credit No. 21207204 issued by Rhinebeck Bank dated OS ",PS"ly)O; in the amount of
;"0 lJ..
one hundred and thirty thousand dollars and nol100 ($130,000.00) in favor of the Obligee and if the
required improvements pursuant to the Town of Wappinger Planning Board Resolution dated June 18,
2012, are left incomplete by the Obligor on or before July 9,2014, the Obligee may draw the full amount
of the Security and hold the proceeds of it as security for the performance of the obligations secured by
this Bond, and
No later than thirty (30) days prior to the expiration of this Bond, Obligor shall, if the
improvements are not then complete and accepted by the Town of Wappinger, sign a new Performance
Bond, in a form acceptable to the Planning Board, Town Board and Town Attorney, and the Obligee shall
REPLACEMENT Performance Agreement and Bond 8- 7-12.doc
2
continue to hold the Security pursuant to the terms hereof, unless Obligee in its sole discretion determines
to draw upon the Security as provided below.
Until such time as any proposed roads, as shown on the subdivision map are dedicated to the
Twon of Wappinger, the undersigned agrees to maintain said roads, and to keep them clear and passable
during inclement weather, remove snow and ice with the same frequency and with the same standards as
kept by the Town of Wappinger Highway Department, and at the direction ofthe Town of Wappinger
Highway Superintendent.
Upon construction and completion of the required improvements and obligations set forth herein,
including payment of any financial obligations, and upon request of the Town, the undersigned will
dedicate the required public improvements to the Town, free and clear of any liens or obligations as set
forth in the Local Laws, Ordinances, Rules and Regulations of the Town of Wappinger.
As security for this Bond, and the obligations contained herein, including sums sufficient to pay
for attorneys' and consultants' fees in the event the undersigned fails to perform the obligations
hereunder, the Obligor hereby delivers to the Obligee the following security for the faithful performance
of the obligations undertaken by Obligor herein: Irrevocable Standby Letter of Credit No. 21207204
r p,1J-
issued by Rhinebeck Bank dated Q$ er.Ly ~, in favor of Obligee in the amount of one hundred and
thirty thousand dollars and no/100 ($130,000.000), securing Obligor's obligations set forth herein.
Within thirty (30) days following written demand by the Obligee of Obligor for an increase in the
Security in the event of an increase in the cost of highway construction index as formulated by the Town
of Wappinger, Obligor shall increase the amount of the Security as set forth in said demand.
In the event the Obligor fails to properly or timely make those improvements described herein or
it otherwise fails to perform any other obligation required pursuant to this Bond, upon written demand
made by the Obligee, with a copy to the Obligor at the addresses above, the Obligee shall have the right
to draw upon said proceeds from time to time in such amounts as may be required for it to complete the
improvements, and may thereafter complete the improvements, which completion the Obligor hereby
~LACEMENT performance Agreement and Bond 8-7-12.doc
3
authorizes, and which Obligee may, but shall not be required to undertake, but limited to the sum of one
hundred and thirty thousand dollars .and no/lOO ($130,000.00).
The Obligor hereby agrees to both release and covenant not to sue the Town of Wappinger with
respect to any and all claims on behalf of itself, its successors or assigns, with respect to the enforceability
of this performance obligation for any non-confomrity with the procedural and substantive provisions of
Town Law Section 277 and/or the Town of Wappinger Code; furthelmore, the Obligor agrees hereby to
defend and indenmify the Town of Wappinger with respect to any claims or defenses by any lending
institution in connection with this project or by an institution providing collateral security to the Town of
Wappinger with respect to this performance obligation that the aforesaid provisions of Town Law Section
277 may not have been followed in connection with giving, acceptance and approval of this performance
obligation with respect to the construction and installation of the road and public improvements in the
development of the Subdivision.
The Obligor further binds its successors, heirs, executors, administrators, and assigns as the case
may be, for the full and faithful performance of the obligations set forth herem.
As additional security for this obligation, John Goetz, a Member of Obligor, further joins in the
execution of this document for the sole purpose of guaranteeing the full and faithful performance oftb.e
obligations created hereunder.
The Obligor further acknowledges and agrees that if the Security posted hereunder lapses or if the
Obligor fails to perform any oftb.e obligations set forth in this Bond, Obligor shall be deemed in default
of this Bond and in addition to any other remedies provided for herein, the remaining lots within the
subdivision will no longer be eligible for building permits andlor certificate(s) of occupancy until such
defaults are cured.
By his signature on behalf of Obligor below, John Goetz represents and warrants that he is an
authorized representative of Obligor and is duly and expressly authorized to execute this Bond on behalf
of Obligor.
REPLACEMENT PerfOlrnance Agreement "ndBond 8-7-l2.doe
4
~ ~ ~o~::L
Dated:' ,Jy _: 2012.
JOHN GOETZ, an individual
STATE OF NEW YORK )
)S5.:
COUNTY OF DUTCHESS )
~ Av+
On the '?' day of ~2012, before me, 1he undersigned, a Notary Public in and for said state,
personally appeared -:ro~"" (,0"+ z-. , personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscnoed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his s' ature on the
instrument, the individual, or the person upon behalf of which the individual ted, executed the
instrument.
MARIA L. JONES
Notary Public, State Of New York
No.01J06090516 i
Qualified In Dutchess County
Commission Expires April 16. 20
F:\USER\CLIENTS\W\W APPlNGER _ I'OWN\PLANNING BOARD\SIL VER FOX\REPLACEMENT PERFORMANCE AGREEMENT AND BOND
11-7-12.DOC
~VOCABLESTANDBY
LETTER OF CREDIT
LENDER:
RHINEBECK BANK
2 Jefferson Plaza
poughkeepsie, New York 12601
CUSTOMER:
MID-HUDSON HOLDINGS, LLC
P.O. Box 636
Fishkill, New York 12524
BENEFICIARY:
TOWN OF WAPPINGER
20 Middlebush Road
Wappingers Falls, New York 12590
AMOUNT:
$130,000.00
PROJECT:
SILVER FOX ESTATES
Scotse Road and Losee Road
Town of Wappinger, Dutchess County, New York
EXPIRA TION DATE:
Julv 19. 2013
This Letter of Credit shall expire upon the earlier of:
1. The close of business on July 19, 2013, and all drafts and accompanying
statements or documents must be presented to Lender on or before that time; or
2. The date that Lender honors a draw under which the full amount of this Letter of
Credit is drawn.
Lender indicated above ("Lender") hereby establishes at the request and for the account of
Customer an Irrevocable Standby Letter of Credit in favor of Beneficiary for a sum or sums not
exceeding the aggregate amount of ONE HUNDRED THIRTY THOUSAND and 00/100
($130,000.00) DOLLARS. These funds shall be made available to Beneficiary against Lender's
receipt from Beneficiary of drafts drawn at sight on Lender at its address indicated above (or
such other address that Lender may provide Beneficiary with written notice of in the future)
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 YOUR CUSTOMER 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.
1. DRAFT TERMS AND CONDITIONS.
Lender shall honor the drafts submitted by Beneficiary under the following terms and
conditions:
Each sight draft must be dated; must be on Beneficiary's letterhead; must identify
the Customer by name and address; must state that the Customer is in default of its
obligation(s) to the Town of Wappinger to perform certain work in accordance with the
approved plan, specifications and other documentation filed with the Town, conditions of
subdivision approval and any security agreement entered into between Customer and
Beneficiary, including but not limited to construction, installation and dedication of the
required public improvements and obligations, and compliance with required escrow
deposits, as more particularly set forth in the Resolution of Preliminary and Final
Subdivision Plat and Wetlands Permit Approvals ofthe Town of Wappinger Planning
Board dated June 4, 2012, for the Silver Fox Estates Subdivision located in the Town of
Wappinger, County of Dutchess and State of New York; and must be signed by the
Supervisor of the Town of Wappinger, New York.
Upon Lender's honor of such drafts and payment to the Beneficiary, Lender, once the full
amount of credit available under this Letter of Credit has been drawn, shall be fully discharged
of its obligations under this Letter of Credit and shall not thereafter be obligated to make any
further payments under this Letter of Credit in respect of such demand for payments to
Beneficiary or any other person.
2. USE RESTRICTIONS.
All drafts must be marked "DRAWN UNDER RHINEBECK BANK IRREVOCABLE
STANDBY LETTER OF CREDIT NO. 21207204 DATED AS OF JULY 19,2012", and the
amount of each draft shall be marked on the draft. Except as provided in paragraph 4 below,
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 thereon; 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).
3. 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 original
Beneficiary's administrator, executor, bankruptcy trustee, receiver, liquidator, successor, or other
representatives at law; 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 Uudicial,
administrative or executive).
4. TRANSFEREE'S REQUIRED DOCUMENTS.
When the presenter is a permitted Transferee under paragraph 3 above, the documents
required for a draw shall include:
(a) All documents required elsewhere in this Letter of Credit, except that such
documents may be in the name of either the original Beneficiary or the presenter permitted by
paragraph 3; and
(b) When the presenter is a permitted Transferee under paragraph 3(a) or a third party
under 3(b), a certified copy of one or more documents which show the presenter's authority to
claim through or to act with authority for the original Beneficiary.
5. CHOICE OF LA W/WRISDICTION.
The Uniform Customs and Practices for Documentary Credits, 1993 Revision, ICC
Publication No. 500, as same may be have been or be amended from time to time (hereinafter
called the "UCP") shall in all respects be deemed a part hereof as fully as if incorporated herein
and shall apply to this Letter of Credit. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States of America, except to the
extent such laws are inconsistent with the UCP. Lender and Beneficiary consent to the
jurisdiction and venue of New York State Supreme Court, Dutchess County in the event of any
legal proceeding under this Letter of Credit.
6. EXPIRY.
Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with
the terms of this Letter of Credit will be duly honored by Lender if presented to the Lender on or
before the Expiration Date. .
7. AUTOMATIC EXTENSION.
It is a condition of this Letter of Credit that is shall be deemed automatically extended
without amendment for a one year term from the present Expiration Date of this Letter of Credit
unless, at least thirty (30) days prior to such date, the Lender notifies the Beneficiary by certified
letter or overnight courier that Beneficiary will not consider this Letter of Credit renewed for
such one year term.
Dated as of July ZO, 2012
LENDER:
By: ' I
William A. Griffiths, Jr.
SVP Commercial Lending
.
ENDORSEMENT OF DRAFTS DRAWN:
Date
Negotiated By:
Amount
in Words:
Amount
in Figures: