HomeMy WebLinkAboutItem 09 Approval of a Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Agreement with Meritage Homes of Florida, Inc., for the Greens at Forest Lake Phase 2 ocoee
florida
AGENDA ITEM COVER SHEET
Meeting Date: May 18, 2021
Item #
Reviewed By:
Contact Name: Martrivus Keaton, Department Director:
Development Engineer
Contact Number: 407-554-7085 City Manager:
Subject: Approval of a Two-Year Warranty Surety and Maintenance, Materials, and Workmanship
Agreement with Meritage Homes of Florida, Inc. for the Greens at Forest Lake Phase 2
Commission District 1 — Larry Brinson, SR
Background Summary:
Greens at Forest Lake Phase 2 is made up of 70 townhomes. The parcel is located on the west side of State Road
429,just East of Arbours Apartments. The developer has completed construction of the infrastructure improvements
for the subdivision and has requested a Certificate of Completion. The infrastructure improvements include the
potable water, sanitary sewer, reclaimed water, utilities, the public roadways, stormwater collection system,
perimeter wall/fencing, and associated landscaping. All identified punch list repairs have been completed, and the
developer is ready to start the two-year warranty period for the public improvements.
As a requirement of the Land Development Code, the developer is required to furnish the City a Surety to cover
any possible damages discovered during the next two years. Should the developer not choose to make those
repairs, Meritage Homes of Florida, Inc, has provided the City with a Letter of Credit in the amount of 10% of the
constructed improvements. The attached Maintenance, Materials, and Workmanship Agreement (Form 8 from the
Land Development Code) acts as the executable document between the developer and the City. The Surety will be
returned to the developer upon completion of the two-year warranty period and the repair of any damages caused
over those two years.
Issue:
Should the City accept the Surety as provided by Meritage Homes of Florida, Inc, for the two-year warranty for
Greens at Forest Lake Phase 2 and execute the Maintenance, Materials, and Workmanship Agreement?
Recommendations:
The Development Services Department recommends the acceptance of the Surety and the execution of the
Maintenance, Materials, and Workmanship Agreement with Meritage Homes of Florida, Inc,for the Greens at Forest
Lake Phase 2.
Attachments:
1. Maintenance, Materials, and Workmanship Agreement with Meritage Homes of Florida, Inc.
2. Irrevocable Stand-By Letter of Credit Number 55109763 issued by Regions Bank.
Financial Impact:
There are no financial impacts to the City in accepting this two-year warranty Surety.
Type of Item: (please mark with an "x")
Public Hearing 7Cleik's Dent Use:
Ordinance First Reading Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
X Commission Approval
Discussion& Direction
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney N/A
Reviewed by Finance Dept. N/A
Reviewed by N/A
2
MAINTENANCE, MATERIALS, AND
WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT
(GREENS AT FOREST LAKE PHASE 2)
THIS MAINTENANCE,MATERIALS,AND WORKMANSHIP AGREEMENT
(this"Agreement") is entered into this_ day of 2021,by Meritage Homes of Florida,Inc.,
(the"Developer") and the CITY OF OCOEE, a Florida municipal corporation, whose address is
150 North Lakeshore Drive,Ocoee,Florida 34761 (the"City").
WITNESSETH:
WHEREAS,Developer, or its predecessor-in-interest or its predecessor-in title,has
developed and/or constructed a subdivision known as GREENS AT FOREST LAKE PHASE 2
(the"Subdivision") and in connection therewith has installed with the approval of the City
certain roads, streets, sewer,water and reuse systems, drainage facilities (including retention and
detention ponds), and/or other improvements(collectively,the"Improvements")under the
provisions, conditions, and requirements of the City's Subdivision Regulations and the following
Final Subdivision Plan(or Preliminary/Final Subdivision Plan)approval by granted the Ocoee
City Commission on June 18,2019: Preliminary/Final Subdivision Plans for Greens at Forest
Lake Phase 2;and
WHEREAS,the Subdivision is located within certain real property located in the City of
Ocoee, Orange County, Florida, as more fully described in the attached Exhibit"A"which
exhibit is incorporated herein by this reference(the"Property"); and
WHEREAS,under Section 4-4, Subdivision Review Process,of the City's Land
Development Code,Developer is required to guaranty the maintenance, materials, and
workmanship of the Improvements within the Subdivision; and
WHEREAS,in order to obtain the issuance of a Certificate of Completion with respect
to the Improvements,the Developer desires to guaranty such maintenance,materials, and
workmanship by having Regions (the"Bank") (or such other bank as may be acceptable to the
City) establish an Irrevocable Standby Letter of Credit in favor of the City in substantially the
form attached hereto as Exhibit"B" and by this reference made a part hereof("Letter of
Credit").
NOW THEREFORE,the parties agree as follows:
SECTION ONE: Establishment of Letter of Credit.
Developer does hereby agree to have Bank establish the Letter of Credit in favor of the
City in the amount of TWENTY SEVEN THOUSAND EIGHT HUNDRED SIXTY SIX
05/100 DOLLARS ($_27,866.05)to guaranty the maintenance,materials,workmanship,and
structural integrity of the Improvements and the other obligations of the Developer under this
ORLA 1688244.1
Agreement. The Letter of Credit shall be established and drawn upon only in accordance with
the terms of the Letter of Credit and this Agreement.
SECTION TWO: 2-Year Warranty Period.
For a period of two(2)years from the date of issuance of the Certificate of Completion
(the"Warranty Period"),the Developer shall maintain the Improvements in a first class condition
and shall repair, correct and/or cure any Deficiency(as defined in Section 3 below)within thirty
(30)days of receipt of written notice of a Deficiency from the City. The Developer shall pay any
and all costs or expenses incidental to the performance of any such work. The City may provide
notices of a Deficiency from time to time during the Warranty Period.
SECTION THREE: City's Right to Draw on Letter of Credit.
If at any time during the Warranty Period,the City notifies Developer in writing(i)that
the Improvements have not been maintained in a first class condition, (ii)that paving or other
structures within the Subdivision have been found by the City to not be in compliance with the
Subdivision approval, and/or(iii)that there is a deficiency or fault in the materials,
workmanship, or structural integrity of the Improvements which has been found by the City to
not be in compliance with the Subdivision approval(collectively,a"Deficiency") and Developer
fails to repair, correct and/or cure such Deficiency to the satisfaction of the City within thirty(30)
days from receipt of the notice thereof as set forth in Section 2 above, then the City may draw
upon the Letter of Credit without further notice to Developer in order to establish a cash escrow
for the performance of the Developer's obligations under this Agreement(the"Cash Escrow").
Additionally,the City may draw on the Letter of Credit in order to establish a Cash
Escrow in such amounts as the City deems necessary or appropriate(a)in the event of a default
by Developer under this Agreement, and/or(b) as provided for in the Letter of Credit.
SECTION FOUR: Term of Letter of Credit.
The Letter of Credit shall be for a term of no less than two(2)years and one(1)month
from the date of issuance of the Certificate of Completion. Notwithstanding anything contained
in Section 3 above,in the event the City has notified Developer of a Deficiency as provided
above,then the term of this Agreement shall continue and the term of the.Letter of Credit shall be
extended until such Deficiency is corrected. If the City has provided a notice of Deficiency
which has not been repaired, corrected and/or cured within thirty(30)days from the date the
Letter of Credit(or any extension or replacement thereof)is scheduled to expire,then the City
may draw on the Letter of Credit and establish a Cash Escrow for the performance of the
Developer's obligations under this Agreement.
SECTION FIVE: City's Use of Funds Drawn on Letter of Credit.
Unless otherwise mutually agreed to by City and Developer,the funds available through
the Letter of Credit and any Cash Escrow established under this Agreement shall be used by the
City only(a)to repair, correct and/or cure any Deficiency, (b)to cure a breach by Developer of
its obligations under this Agreement, and/or(c)to pay for reasonable administrative expenses
-2-
ORLA 1688244.1
and attorneys' fees and costs incurred by the City in exercising or otherwise enforcing its rights
under this Agreement and Letter of Credit.
If the Developer fails or refuses to undertake the repair, correction and/or cure of any
Deficiency,then the City may,but shall not be obligated to,undertake such repair, correction
and/or cure any Deficiency,the cost of which shall be paid for out of the Letter of Credit and any
Cash Escrow established pursuant to this Agreement. In the event the City undertakes any such
repair, correction and/or cure,then the City shall be entitled to retain an administrative fee in the
amount of two percent(2%)of the cost thereof and shall also be entitled to reimbursement of all
costs and expenses incurred by the City in undertaking such action,including but not limited to
its legal fees and costs. The City may use third party contractors to perform any such corrective
actions.
SECTION SIX: Right of Entry for Corrective Activities.
In the event the City undertakes to repair, correct and/or cure any Deficiency,then in such
event the Developer hereby grants to the City and its employees, contractors and representatives,
the right to enter upon the Property and the Improvements for the purpose of performing any such
repair, correction, and/or cure.
SECTION SEVEN: No Obligation of City to Undertake Repairs or Advance Funds.
Nothing contained herein shall be construed to in any way obligate the City to(i)advance
City funds for any purpose on behalf of the Developer,or(ii)to undertake the repair, correction
and/or cure of any Deficiency. Further,the City shall have no liability to the Developer or any
third parties with respect to any corrective actions undertaken by the City.
SECTION EIGHT: Excess Funds.
In the event that the City draws on the Letter of Credit and establishes the Cash Escrow,
then any excess funds shall be returned to the Developer after any and all of the Deficiencies
have been repaired,corrected and cured to the satisfaction of the City and after the payment from
the Cash Escrow of all obligations of the Developer under this Agreement.
SECTION NINE: Continued Applicability of Subdivision Regulations.
This Agreement shall not be construed to relieve or release Developer from any of its
obligations under the City Subdivision Regulations with respect to the Improvements.
SECTION TEN: Construction.
This Agreement shall be construed in accordance with the laws of the State of Florida.
-3-
ORLA 1688244.1
IN WITNESS WHEREOF,the parties hereto have caused these presents to be signed as
of the date and year first above written.
DEVELOPED.:;/ �� 1
By: /,J` -�
Print N'amei:-Brian Kittle_
Title:`Division President
CITY:
ATTEST:
CITY OF OCOEE,FLORIDA,a Florida
municipal corporation
By:
Melanie Sibbitt, City Clerk By:
Rusty Johnson,Mayor
(SEAL)
FOR THE USE AND RELIANCE BY THE APPROVED BY THE OCOEE CITY
CITY OF OCOEE ONLY. APPROVED COMMISSION AT A MEETING
AS TO FORM AND LEGALITY HELD ON -20
this day of UNDER AGENDA ITEM NO.
20_.
SHUFFIELD,LOWMAN&WILSON,P.A.
By:
City Attorney
-4-
ORLA 1688244.1
EXHIBIT"A"
(Legal Description of Real Property Constituting the Subdivision)
A portion of the Northwest 1/4 of Section 5, Township 22 South, Range 28 East, Orange
County,Florida, being more particularly described as follows:
BEGIN at the southeast corner of Tract G-1, GREENS AT FOREST LAKE-PHASE 1,
according to the plat thereof, as recorded in Plat Book 102, Pages 9 through 14,Public
Records of Orange County,Florida; said point lying on the east line of the West 1/2 of the
Northwest 1/4 of said Section 5;thence run S 02°44'11" W, along said east line, a
distance of 335.05 feet to a point of curvature of a non-tangent curve, concave
northwesterly,having a radius of 1,759.86 feet; said point lying on the westerly limited
access right-of-way line of State Road No. 429 (Western Beltway);thence run along said
westerly limited access right-of-way line, the following two (2) courses and distances: on
a chord bearing of S 44°01'24" W and a chord distance of 995.76 feet, run southwesterly, .
along the arc of the aforesaid curve, a distance of 1,009.55 feet,through a central angle of
32°52'04"to a point on a non-radial line; thence run S 73°33'12" W, a distance of 46.96
feet to a point on the easterly line of said GREENS AT FOREST LAKE-PHASE 1;thence
run northerly along said easterly line, the following courses and distances: run N
04°08'50"E, a distance of 176.01 feet;thence run N 15°21'21" W, a distance of 29.38 feet
to a point of curvature of a non-tangent curve, concave northerly, having a radius of
134.00 feet; thence, on a chord bearing of S 84°23'45" W and a chord distance of 45.39
feet, run westerly along the arc of said curve, a distance of 45.61 feet, through a central
angle of 19°30'11" to the point of tangency thereof;thence run N 85°51'10" W, a distance
of 27.11 feet to a point of curvature of a curve, concave southerly,having a radius of
25.00 feet and a central angle of 11°33'28";thence run westerly, along the arc of said
curve, a distance of 5.04 feet to a point on a non-radial line; thence run N 04°08'50" E, a
distance of 65.51 feet; thence run S 85°51'10" E, a distance of 34.00 feet;'thence run S
04°08'50" W, a distance of 14.98 feet to a point on a non-tangent curve, concave
northerly, having a radius of 84.00 feet; thence, on a chord bearing of N 74°22'O1" E and
a chord distance of 53.31 feet,run easterly along the arc of said curve, a distance of 54.24
feet,through a central angle of 36°59'58"to a point of compound curvature of a curve,
having a radius of 1,590.60 feet and a central angle of 00°23'31"; thence run northeasterly
along the arc of said curve, a distance of 10.88 feet to a point on a non-radial line; thence
run N 04°08'50" E, a distance of 160.41 feet; thence run N 48°59'14" E, a distance of
147.12 feet;thence run N 42°11'22" E, a distance of 169.04 feet;thence run N 35°53'23"
E, a distance of 142.35 feet; thence run N 29°35'27" E, a distance of 178.78 feet;thence
run N 01°44'01" W, a distance of 131.97 feet; thence run N 88°15'59" E, a distance of
323.73 feet to the POINT OF BEGINNING.
. Containing 8.77 acres,more or less.
-5-
ORLA 1688244.1
EDIT"B"
FORM OF LETTER OF CREDIT
(See Following Page)
-7-
ORLA 1688244.1
..,........... . • • .• ' . . ' . .: '.. . A:: ' • REGION . • • • —
r. : 1900 •5TH'AVE NORTH,' UPPER LOBBY, BIRMI•NGHAM,. AL'3520'3.
• • ' ' .. 'S'.W:I'.F.T. UPNBUS44XXX
• ' ' ' PHONE •(866).828=6928: FAX••(205)264-08• ,01
••• • • •• . • . ' . ...... . , . :... ••••••.: -.....:...-......•
• ItR1rVOCA$LE,STANDBY .LETTER OF:'C•RRDIT NO..:5'51097.63•. ' ' ' : ,
'DATE': 01'/16/2021 ' • •
E"XPZRY•:DATE•;-.'01./31/2023 .. • •:•
BEN.; 'I OIFYRY. •
• �'
• 'CITY'QF:•.0'COEE . .
', - 11(€:I1ORTFi'`LAZESHQR�E...DRIVE .
•
OCOEE;°'FL•3476.1 ' . , • _ • �,`
ATTN:• CITY ENGINEER.• . •
•
.• 'ACCOUNT.PARTY: '
• • .MERITAGEHOMES OF FLORIDA, INC • • .
..
• 0.800 EAST RAYNTREE SUITE 300 . - • • •
SCOTTSD:AL'E, AZ 65260' ;
PROJECT NAME: GREENS AT FOREST LAI(E, PHASE 2 IMPROVEMENTS
• AMOUNT: $2'7',866.05' (,TWENTY SEVEN'.THOUSAND:EIGHT HUNDRED.SIXTY=SIX AND.'
. . 05/10-01'U:S. DOLLARS) . • ' ' . ,
• WE HEREBY ESTABLISH'OUR IRREVOCABLE STANDBY'LETTER OF CREDIT NO.
•55L09763, •IN-FAVOR OF THE CITY OF OCOEE,. A FLORIDA MUNICIPAL
. '•COItPORAT•IQN,',AND AUTHORIZE YOU' TO DRAW ON,, REGIONS BANK,. 252 •OCOEE'APOPKA • '
' • . SD,. E?CO$E,•,:F•L •3A7'61 ATTENTION:, BRANCH.MANAGER SY ORDER OF MERITAGE .I•IOMES. ••:•• '
. • - : - OF••'FLORIDA; -:INC. 'OP TO BUT NOT EXCEEDING THE,AGGREGATE AMOUNT:OF.- '
' '$•27;866.05 '(TWENTY SEVEN THOUSAND EIGHT HUNDRED SIXTY-SIX AND'05./100 • •
U.S•.•DOLLARS)'.IN UNITED STATES •FUNDS,. WHICH IS AVAILABLE BY' YOUR.DRAFT •
. ' AT.SIGHT, WHEN'ACCOMPANIED BY THIS LETTER OF CREDIT AND ANY'ONE OF.THE • • •
• 'FOLLOWING DOCUMENTS-:'- .. _ .. .
1. A.:'STATEMENT-PURPORTEDLY SIGNED BY THE MAYOR, CITY MANAGER OR ' ' ~• '
• . .AUTHORIZED REPRESENTATIVE TO THE EFFECT THAT THE CITY IS ENTITLED'•TO
.DRAW'UPON THE LETTER OF CREDIT PURSUANT TO THE TERMS OF THAT CERTAIN ' _
•MPiZ•NTENANCE, ..MATERIALS AND WORKMANSHIP AGREEMENT -BETWEEN THE CITY-•Alb.
• . APPLICANT WITH RESPECT TO THE FOLLOWING SUBDIVISION; GREENS. AT FOREST ' - -
. - L1 KE,• PHASE'.2, OR • - . - •• .
2: A STATEMENT• SIGNED BX THE MAYOR, CITY MANAGER •OR AUTHORIZED
• • REPRESENTATIVE TO THE, EFFECT THAT. THE PERFORMANCE4-OF APPLIANT'S
OBLIGATION' UNDER•THE MAINTENANCE, MATERIALS AND WORKMANSHIP•AGREEMENT •
HAS 'NOT BEEN•COMPLETED YET AND THE LETTER .OF CREDIT WILL EXPIRE WITHIN '
• 30 'DAYS MOM'THE;DATE OF THE DRAWING WITHOUT BE1NG EXTENDED OR' REPLACED
• . TO THE CITY'S SATISFACTION; OR
•
. • - 3..A:STATEMENT PURPORTEDLY SIGNED BY THE MAYOR, CI•TY MANAGER OR . • ..
AUTHORIZED:•REPRESENTATIVE TO- THE EFFECT THAT •REGIONS-BANK HAS. LAST ITS - •
• DESIGNATION:AS A "QUALIFIED PUBLIC DEPOSITORY" PURSUANT TO FLORIDA '
STATUTES; CHAPTER -280,' AND AN ACCEPTABLE'REPLACEMENT LETTER' OF•,CREDIT
' - , HAS':NOT,BEEN-RECEIVED._. • -
s - - Page 1. of 3: - •
•
• .
. . .
. . . - .
APA-. EGIONS - • • :
.Our•:reference Number•:. 55109763 - . • •
Page: 2 • ;
' THIS'•:FETTER OE 'CREDIT *SHALL ;BE IN FULL FORCE.UNTIL JANUARY •3 .,• 2023 AND' ,
' WILL AUTOMATICALLY. HE EXTENDED FOR •A PERIOD NOT TO•EXCEED' NINETY -(90),•
. •DAYS'.•WITHOUT_AMENDMENT UNLESS WE PROVIDE. THE CITY.:MANAGER OF THE' CITX OF., • . '
• ••-OCOEE WET.H• WRITTEN NOTICE OF OUR INTENT•TO• TERMINATE THE CREDIT. HEREIN • . •- ' • • .
• EXTENDED;''WHICH. NOTICE MUST BE- PROVIDED AT LEAST -THIRTY •.•(30): DAYS PRIOR-1 • •.
• •• • TO `].'HE••EXPIRATION :DATE OF THE ORIGINAL TERM HEREOF OR ANY EXTENDED :TEM..:• -
• • • - "DRAWS' MUST •BEAR,THE CLAUSE: "DRAWN UNDER LETTER•OF CREDIT NO.::55109763:, "• " -
• • OF REGIONS•.BANK,; DATED,•01/15/2021." .
•• • THIS LETTER' OF CREDIT SHALL REMAIN IN FULL. •FORCE AND EFFECT • • ' - ' - ,
NOTWITHSTANDING G A,•PARTIAL,DRAW••OR• DRAWS SO LONG.-AS A SUM SEMAiNS TO;-BE - •
• • •• DRAWN OR UNT.IL,'THE LETTER OF CREDIT HAS EXPIRED.. . •• •
• ''EXCEPT AS.. OTHERWISE SPECIFICALLY STATED HEREIN, THIS LETTER OF CREDIT
SETS• FORTH:IN FULL'THE TERMS OF OUR UNDERTAKING; AND.SU,CH•UNDERTAKING ' , '
• •• SHALL:NOT.'IN ANY WAY BE MODIFIED, AMENDED, OR AMPLIFIED BY REFERENCE'TO ' '
..' . _ • ANY.•.DOCUMENT.; •INSTRUMENT, OR .AGREEMENT REFERENCED NCED TO'HEREIN. OR IN `WHICH•, . •
. THIS.:LETTER or;CREDIT IS REFERRED TO OR.THIS LETTER OF CREDIT.'REI,IATES•, '
.• • . ' 'AND.ANY'.SUCH;REFERENCE SHALL NOT BE DEEMED TO .I•NCORPORATE- HEREIN.BY; • ' • • ' •
: REFERENCE ANY'DOCUMENT,- INSTRUMENT, OR AGREEMENT'.• » • ' • .
'- WE'HEREBY AGREE WITH THE DRAWERS, ENDORSERS, .AND BONA' FIDE HOLDERS' OF •. •
• -ALL'DRA,FTS DRAWN .UNDER,AND IN COMPLIANCE WITH'THE'TERMS OF THIS LETTER '
OF 'CREDIT,• THAT SUCH''DRAFTS WILL BE DULY' HONORED UPON-PRESENTATION..TO '
THEREG.I.ONS• BANK, '252 OCOEE APOPKA RD, OCOEE, FL• 34'761,• ATTENTION:, • ' .
BRANCH;MANAGER.' • •
- .THIR:LETTER.OF CREDIT WILL BE CONSIDERED AS CANCELLED•'UPON •RECEIPT BY US'- • - -
• - .OF '•HE ORIGINAL•-LETTER AF CREDIT INSTRUMENT OR UPON ANY•PRESENT OR• : • ' • ••• •
. FUTURE'•EXPIRY'.DATE HEREUNDER, .WHICHEVER SHALL OCCUR FIRST. • , .'•. • , ' • • ' - '
TH•I$„LETTER OF. CREDIT- IS SUBJECT TO-THE -"INTERNATIONAL STANDBY PRACTIGES. : ' .
• ' ' •3..998: (ISP98)."•, '(INTERNATIONAL CHAMBER OF COMMERCE.PUBLICATION 'NO.-.590) ' • • - •
' -•AHD"AS TO"MATTERS NOT GOVERNED BY ISP98,., SHALL BE GOVERNED-AND 'CONSTRUED- • •
• . • IN•AOCORDANCE WITH THE PROVISIONS OF FLORIDA LAW.• , IF,A'CONFLICT BETWEEN. ' •
INTERNATIONAL. STANDBY,PRACTICES (ISP98)", AND FLORIDA LAW SHOOLA,•FkRISE, :: • • • .• •'
• • : FLORIDA LAW SHATZ•:PREVAIL. IF A CONFLICT BETWEEN 'THE•LAW..OF.ANOTHER" • • • • •
STATE.OR. COUNTRY'AND FLORIDA LAW SHOULD ARISE, FLORIDA .LAW SHALE,' ' • • • '
• PREVAIL: ' • '• •
' • VERY TRULY..YOURS • -
AD' HORI21aD SIG ATUR - "
' ' • SUER:, •REGIONS )3A •
• •
Page 2 of 3 -
• , -
. .
. .. . .. . .
A \ REGION S •
Oux••reference 'Number: •55109753 •
• •• Page: 3 . • '
. . _ e ,
146RIZEP SIGNATURE •
'AEGIONSr BANE. •. '• . .
•
. - • '� -
•
• -• a •.
Page 3 of 3