HomeMy WebLinkAboutItem 04 Approval of Fourth Amendment to the Development Agreement and Amended Escrow Agreement for Arden Park to Provide Funding for Lennar Homes to Facilitate the Widening of Clarke RoadMeeting Date: September 19, 2023
Item #: 4
Contact Name: Michael Rumer Department Director: Michael Rumer
Contact Number: Ext. 1018 City Manager: Robert Frank
Subject: Approval of Fourth Amendment to the Development Agreement and Amended
Escrow Agreement for Arden Park to Provide Funding for Lennar Homes to Facilitate the
Widening of Clarke Road. (Development Services Director Rumer)
Background Summary:
General Location: Clarke Road, Commission District 4 - Ages Hart.
On August 15, 2023, the Public Works Department, under an Emergency Item, requested $3,253,699.90 of
Transportation Impact Fee money to cover the total costs of the Clarke Road Widening costs and will allow
Lennar to start the materials procurement process and construction of the two western lanes. The original cost
of $4,634,480.00 was derived utilizing published State cost summaries from 2019/2020 projects. The
construction industry has experienced unprecedented annual increases of over 20% in 2021 and 2022. The
industry is trending back to less than 5% annual cost increases in 2023, but not decreasing to pre -pandemic
levels. Lennar has finalized their cost to construct the Clarke Road improvements and Public Works has
reviewed the costs to ensure they are in line with current cost summaries. Based on the final design, an
additional $2,903,699.90 in new costs and an additional $250,000.00 in contingencies to cover potential
change orders will be added to the escrow agreement.
The Escrow Agreement is being amended to change the Law Firm acting as the Escrow Agent from Shuffield
Lowman (past City attorney) to Fishback Dominick (new City attorney).
Issue:
Should the Honorable Mayor and City Commissioners approve a Fourth Amendment to the Development
Agreement and Amended Escrow Agreement Memorializing the Additional Funds from Transportation Impact
Fees to Provide the Required Funding for Lennar Homes to Facilitate the Widening of Clarke Road?
Recommendations:
Staff recommends the Honorable Mayor and City Commissioners approve a Fourth Amendment to the
Development Agreement and Amended Escrow Agreement Memorializing the Additional Funds from Transportation
Impact Fees to Provide the Required Funding for Lennar Homes to Facilitate the Widening of Clarke Road.
Attachments:
1. Fourth Amendment to Development Agreement-20819574-v3
2. Escrow agreement (REDLINED) - crd - 8 14 23
Phone:City of Ocoee - 1 N. Bluford Avenue - Ocoee, Florida 34761
(0 91 1i • •-- • r
Page 102 of 193
Financial Impacts:
$3,253,699.90 from Transportation Impact Fees
Type of Item: Consent
City of Ocoee - 1 N. Bluford Avenue - Ocoee, Florida 34761
Phone: (407) 905-3100 - www.ocoee.org
Page 103 of 193
THIS INSTRUMENT WAS
PREPARED BY:
Scott A. Glass, Esq.
Shutts & Bowen LLP
300 S. Orange Ave., Ste. 1600
Orlando, Florida 32801
AND IS TO BE RETURNED TO:
Melanie Sibbitt, City Clerk
City of Ocoee
150 N. Lakeshore Dr.
Ocoee, FL 34761
FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT
(ARDEN PARK)
THIS FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT (the "Fourth
Amendment") is made and entered into the day of , 2023 (the "Effective
Date") by and between LENNAR HOMES, LLC, a Florida limited liability company whose
mailing address is Suite 310, 6750 Forum Drive, Orlando FL 32821 (referred to herein as "Lennar"
or "Developer") and the CITY OF OCOEE, a Florida municipal corporation whose mailing
address is City of Ocoee, Attn.: City Manager, 150 North Lakeshore Drive, Ocoee, FL 34761 (the
"City").
WITNESSETH:
WHEREAS, on or about March 27, 2007, the City and Arden Park Ventures, LLC,
("APV") entered into that certain Development Agreement (Arden Park) recorded as Instrument
20070199656 in O. R. Book 9180, Page 4856 among the Official Records of Orange County,
Florida (the "Development Agreement"); and,
WHEREAS, the Development Agreement set forth the rights, duties and obligations of
APV and the City with respect to development of the Arden Park planned residential community
on certain property then wholly owned by APV and more fully described on Exhibit "A" attached
hereto and incorporated herein (the "Property"); and
WHEREAS, on or about March 24, 2011, the City and APV executed that certain First
Amendment to Development Agreement (Arden Park) recorded as Document 20110294011 in
O.R. Book 10222, Page 6665 among the Official Records of Orange County, Florida (the "First
Amendment"); and,
WHEREAS, on September 29, 2011, APV, assigned all of its rights, duties and obligations
under the Development Agreement to Standard Pacific of Florida, a Florida general partnership
("Standard Pacific"), pursuant to that certain Assignment of Development Agreement recorded as
Document 20110516824 in O.R. Book 10274, Page 7198 among the Official Records of Orange
County, Florida; and,
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WHEREAS, on or about February 19, 2013, the City and Standard Pacific entered into
that certain Second Amendment to Development Agreement (Arden Park) recorded as Document
20130115380 recorded in O.R. Book 10529, Page 4035 among the Official Records of Orange
County, Florida (the "Second Amendment"); and,
WHEREAS, in 2015, Standard Pacific and related entities merged with The Ryland
Group, Inc., to form CalAtlantic Group, Inc. ("CalAtlantic"); and,
WHEREAS, pursuant to such merger CalAtlantic became successor in interest to all of
Standard Pacific's rights, duties and obligations as developer of Arden Park under the Amended
Development Agreement; and
WHEREAS, in February, 2018, CalAtlantic was acquired by Lennar; and,
WHEREAS, on February 18, 2021, the City, Lennar and Arden Park North Homeowners
Association, Inc., entered into that certain Third Amendment to Development Agreement (Arden
Park) recorded as Document 20210222978 recorded among the Official Records of Orange
County, Florida (the "Third Amendment") (the Development Agreement, the First Amendment,
the Second Amendment and the Third Amendment being hereafter collectively referred to as the
"Amended Development Agreement"); and,
WHEREAS, the City has previously planned, designed, engineered and constructed a
portion of the City road known as Clarke Road; and
WHEREAS, it is the City's desire that Clarke Road be extended and improved such that
it eventually connects McCormick Road on the north to State Road 50 (a/k/a Colonial Drive) on
the south, with the segment of Clarke Road to the north of Clarcona-Ocoee Road being a two-lane
road and the segment of Clarke Road to the south of Clarcona-Ocoee Road being a four -lane,
divided urban road; and
WHEREAS, as successor to CalAtlantic by acquisition Lennar has assumed all rights,
duties and obligations of the Developer under the Amended Development Agreement including,
but not limited to, the obligation to design, engineer, permit and construct a two-lane segment of
Clarke Road which is designated and depicted as, "Section B," in the Amended Development
Agreement; and,
WHEREAS, Lennar has designed, engineered, permitted and has constructed, or is
currently constructing, "Section B"; and,
WHEREAS, the Amended Development Agreement contemplated that other segments of
Clarke Road, designated as "Section A" and "Section C," would be designed and constructed by
others or would be designed by others, but constructed by APV or its successor at the City's
expense; and,
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Page 105 of 193
WHEREAS, "Section A" has been completed by others, but "Section C" has not and the
City has determined that, from a time and cost efficiency perspective, it is desirable to have Lennar
proceed with the design, engineering, permitting and construction of "Section C"; and,
WHEREAS, the City has further determined that, again, from a time and cost efficiency
perspective, it is desirable to have Lennar design, engineer, permit and construct certain other
improvements to Clarke Road south of Clarcona-Ocoee Road as hereinafter described.
NOW THEREFORE, in consideration of the premises, the sum of ten dollars and other
good and valuable consideration exchanged between the parties, the receipt and sufficiency of
which being hereby acknowledged, City and Lennar agree as follows:
I. Recitals, Definitions. The above recitals are true and correct and are incorporated
herein by this reference. All capitalized terms not otherwise defined herein shall be as defined in
the Amended Development Agreement.
II. Amendment of Amended Development Agreement. The parties acknowledge
that the obligations contained in subsections A, B, C, D, E, F, G, O, P, R, S, T and V of Section 4.
of the Amended Development Agreement have been satisfied or otherwise replaced with
obligations set forth herein. As such, in addition, Section 4. of the Amended Development
Agreement is hereby deleted in its entirety and replaced with the following:
4. Clarke Road Right -of -Way and Improvements. The following provisions
shall apply:
(i) Neither the Developer, its successors and assigns, nor any other person or
entity shall be entitled to any road impact fee credits or other compensation
of any kind for, on account of, or with respect to the required dedication and
conveyance of the Clarke Road Right -of -Way to the City, or the design,
engineering, permitting and construction of any improvements to Clarke
Road, except as set forth herein.
(ii) Developer shall design, engineer, permit and cause to be constructed certain
improvements to Clarke Road south of the intersection of Clarke Road and
Clarcona-Ocoee Road generally depicted as Section C (the "Section C
Improvements") on the Clarke Road Design Sketch (the "PDA Sketch")
attached and incorporated as Exhibit "D". The City shall pay for the
Section C Improvements as provided in Section 4(vi), below.
(iii) Developer shall also design, engineer, permit and cause to be constructed
those improvements necessary to complete Clarke Road from the southern
terminus of Section C to that point north of A.D. Mims Road where Clarke
Road currently transitions from four -lanes to two -lanes (hereafter, the
"Section D Improvements"), as depicted on Exhibit "E" attached hereto
and incorporated by reference herein. The City shall pay for the Section D
Improvements as provided in Section 4.(vi), below. The Section C
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Improvements and the Section D Improvements are hereafter collectively
referred to as the "City Road Improvements."
(iv) The City Road Improvements shall include the necessary roadway,
attendant sidewalks, streetlights, median landscaping, and provision for
customary utilities and stormwater management. Prior to entering into any
contracts for the design, engineering, permitting and/or construction of the
City Road Improvements, Developer shall obtain a separate price (a/k/a
"Bid") for such work from the entity or entities Developer has contracted
with to perform that particular type of work, i.e., design, engineering,
permitting and/or construction, for the Developer Road Improvements.
Developer will promptly provide each such Bid to the City and the City
shall have ten (10) business days from receipt of a Bid to either approve or
reject it. In the event a Bid is rejected the City shall advise Developer, in
writing, of the reasonable basis or bases for such rejection. Developer shall
then have thirty (30) days to address such issues with the bidder in an effort
to resolve the City's concerns or to obtain a Bid which addresses the City's
issue(s) from another entity. If Developer submits a revised Bid or a new
Bid the City shall have five (5) business days to either accept or reject it. If
the City fails to notify Developer, in writing, of the City's decision by the
end of such five (5) day period, the Revised Bid or alternative Bid, as the
case may be, shall be deemed rejected and the Developer shall have no
further obligation to perform, or secure the performance, of that particular
work. On the other hand, if the City approves a Bid, a revised Bid or an
alternative Bid, then Developer will, within thirty (30) days of Developer's
receipt of the City's written notice of approval, enter a contract (or an
amendment to Developer's existing contract) with the bidding entity for the
performance of the work in question. The contract or contract amendment,
as the case may be, shall name the City as an intended third -party
beneficiary of the performance obligations of the contractor with respect to
the work to be performed thereunder. Approval or rejection of a Bid by the
City may be done by the City Manager of the City, or his designee, with no
further action required by the City Commission of the City.
(v) As an alternative to the procedure set forth in paragraph 4(iv) above,
Developer may enter into a contract for the design, engineering, permitting
and construction of the City Road Improvements on a non -bid basis at a
price acceptable to and approved by City, which acceptance and approval
may be granted or withheld in the City's sole and absolute discretion.
Approval or rejection of this alternative procedure may be done by the City
Manager of the City, or his designee, with no further action being required
by the City Commission of the City.
(vi) If City directs Developer to proceed with the design, engineering,
permitting and/or construction of the City Road Improvements, or any part
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thereof, then, in consideration therefor, City agrees to pay for the same as
follows:
a. City, Developer, and Shuffield Lowman, P.A. entered into an Escrow
Agreement on terms acceptable to the parties thereto and consistent with
the provisions hereof Fishback Dominick shall succeed Shuffield
Lowman, P.A. as escrow agent and the parties hereto shall enter into a
new Escrow Agreement with Fishback Dominick. References in this
Fourth Amendment to "Escrow Agent" shall refer to the law firm then
serving as Escrow Agent in its capacity as an escrow agent.
b. The City has deposited Four Million Six Hundred Thirty -Four Thousand
Four Hundred Eighty Dollars ($4,634,480.00) with the Escrow Agent to
be used by the Escrow Agent to pay approved and documented invoices
for the City Road Improvements and to pay Developer's project
management fee as set forth below (the "Initial Deposit"). The City shall
within ten (10) business days of the execution of this Fourth Amendment
deposit an additional Three Million Two Hundred Fifty -Three Thousand
Six Hundred Ninety -Nine Dollars and Ninety Cents ($3,253,699.90)
with the Escrow Agent to be used by the Escrow Agent for the same
purposes as the Initial Deposit. Therefore, the City's total deposit in
escrow shall amount to Seven Million Eight Hundred Eighty -Eight
Thousand One Hundred Seventy -Nine Dollars and Ninety Cents
($7,888,179.90).
d. Inasmuch as Developer is directly contracting for performance of the
design, engineering, permitting and construction of the City Road
Improvements, Developer shall receive invoices for material received
and/or work performed directly from the party providing such material
or performing such work. Developer shall verify the invoice against the
terms of the underlying bid and contract, review any appropriate
documentation and, before forwarding such invoice to the Escrow Agent
for payment from Escrowed Funds, verify the invoice only includes
Allowable Costs as hereafter defined, and that the materials supplied or
the work performed according to such invoice have in fact been received
or has been performed, as the case may be. Each invoice shall be
certified by a professional Engineer licensed to practice in the State of
Florida and shall be accompanied by such documentation as is reasonable
and customary to support payment. Once Developer ahs verified the
validity of the invoice Developer shall send the invoice, along with
written confirmation of its accuracy, to the City.
d. Upon receipt, City shall have thirty (30) days to direct the Escrow Agent
to pay any undisputed portion of such invoice and to notify Developer,
in writing, if City disputes any portion of such invoice or requires
additional documentation to determine whether payment is appropriate.
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Developer shall have ten (10) business days to provide additional
documentation and/or to submit a written request to eet with City staff in
order to attempt to resolve such dispute. City staff will meet with
Developer within ten (10) business days after City's receipt of a written
request for such meeting. If the dispute remains unresolved after such
meeting the matter shall be elevated to the City Manager or, at the City
Manager's designation, the Assistant City Manager, whil shall meet with
Developer within ten (10) business days after the date Developer and
City staff met. The City Manager or Assistant City Manager, as the case
may be, shall then have five (5) business days to make a final decision.
Such final decision may thereafter be challenged by an appropriate action
filed in the Ninth Judicial Circuit Court for Orange County, Florida and
the provision for attorney's fees costs provided in Section 17 of this
agreement shall apply to thereto.
Upon receipt of written directions from the City, Escrow Agent shall,
within two (2) business days, pay undisputed amounts directly to the
invoicing party. Simultaneously with each such payment the Escrow
Agent shall issue a separate payment to developer in an amount equal to
nine and one-half percent (9.5%) of such payment as a project
management fee to compensate Developer for its time, resources and
administrative overhead. Notwithstanding anything herein to the
contrary, such project management fee shall be capped at Four Hundred
Forty Thousand Two Hundred Seventy -Five Dollars and Sixty Cents
($440,275.60) and once said cap has been reached no further project
management fee shall thereafter be due to Developer or paid by Escrow
Agent.
f. City shall pay all reasonable actual costs incurred in the design,
engineering, permitting and construction of the City Road
Improvements, including reasonable and customary "soft" costs incurred
in the design, engineering, permitting and construction of the City Road
Improvements such as, by way of illustration and not limitation, the cost
of necessary surveys, environmental studies, geotechnical studies, legal
fees, permit application fees, environmental mitigation directly related to
the City Road Improvements, and the like (collectively, the "Allowable
Costs"). As each significant aspect of the City Road Improvements are
completed, but in no event less than quarterly, Developer shall ensure
invoices have been submitted to the Escrow Agent for payment of
completed work.
g. Nothing herein shall prevent the City from seeking reimbursement from
adjacent property owners or any other entity for costs associated with the
City Road Improvements.
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(vii) City shall be responsible for providing or causing others to provide the
facilities necessary to meet the stormwater requirements associated with the
City Road Improvements. Notwithstanding any other provision of this
Agreement to the contrary, Developer shall have no obligation to construct
the City Road Improvements until such time as the City or other party has
provided the facilities necessary to meet the stormwater requirements
associated with the City Road Improvements.
(viii) The Developer shall convey to the City, or cause the current owner thereof
to convey to the City, within 60 days of the date of this Fourth Amendment,
certain property it owns east of Clarke Road and adjacent to Lake Trout and
more particularly described as Tract R according to the Plat of Arden Park
North Phase 4 recorded at Plat Book 100, Page 136, Public Records of
Orange County, Florida. The conveyance shall be by special warranty deed
free and clear of all liens and encumbrances except for those matters
acceptable to the City. The form of the special warranty deed shall be
subject to approval of the City. The Developer shall contemporaneously
with the conveyance of such tract, provide to the City a current attorney's
opinion of title, or a current title commitment to be followed by a policy of
title insurance, evidencing that fee simple title to such property is free and
clear of all liens and encumbrances except for those matters acceptable to
the City. The costs and expenses related to the conveyance of such tract,
including the cost of title work, shall be borne solely by the Developer. Real
property taxes on the property shall be prorated as of the day of the City's
acceptance of the conveyance of the same and the prorated amount of such
real property taxes attributable to the Developer shall be paid and escrowed
in accordance with the provisions of Section 196.295, Florida Statutes;
provided, however, that if the conveyance occurs between November 1 and
December 31, then the Developer shall be responsible for real property
taxes for the entire year.
(ix) Upon completion of construction of each segment of the City Road
Improvements the City shall conduct a final inspection of the applicable
segment and, if such construction passes inspection and Developer has
complied with all applicable written City standards and requirements for
road construction in effect as of the Effective Date of this Agreement, City
shall issue a certificate of completion for such segment.
(x) City shall be responsible for adjusting the timing of all traffic signals
necessitated by construction of the City Road Improvements.
(xi) The City may vacate the existing Hobson Road adjacent to portions of the
Property. Such vacation shall be at the City's timing and sole cost and
expense. Developer and the HOA hereby agree not to oppose the vacation
of Hobson Road and hereby agree to relinquish any rights or claims to any
portion of such road upon vacation of the same.
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Page 110 of 193
III. No Third -Party Beneficiaries. This Fourth Amendment is solely for the benefit
of the formal parties hereto and their respective successors and assigns and no right or cause of
action shall accrue by reason hereof to or for the benefit of any third party. Nothing in this Fourth
Amendment, express or implied, is intended or shall be construed to confer upon or give any person
or entity any right, remedy, or claim under or by reason of this Agreement or any provisions or
conditions hereof, other than the formal parties hereto and their respective affiliates,
representatives, heirs, successors and assigns.
IV. Counterparts. This Fourth Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
V. Recordation. An executed original of this Fourth Amendment shall be recorded
among the Official Records of Orange County, Florida, by the City at the Developer's sole
expense.
VI. Fourth Amendment to Control in Event of Conflict. To the extent any term,
condition or provision of this Fourth Amendment conflicts with any tenn, condition or provision
of the Amended Development Agreement including, but not limited to, any term, condition or
provision set forth in the Revised Arden Park Conditions of Approval attached as Exhibit `B" to
the Second Amendment, or any term, condition or provision of the Amended Land Use Plan for
Arden Park Planned Unit Development as the salve is in effect on the Effective Date hereof, then,
in such instance, the conflicting term, condition or provision of this Fourth Amendment shall
control.
VII. Balance of Amended Development Agreement Remains Effective. Except as
specifically amended by this Third Amendment, all terms, conditions and provisions of the
Amended Development Agreement shall remain in full force and effect.
[Signature Pages to Follow]
M.
Page 111 of 193
Signed, sealed and delivered DEVELOPER:
in the presence of
Print Name:
Print Name:
STATE OF
COUNTY OF
LENNAR HOMES, LLC, a Florida
limited liability company
Print Name:
Print Title:
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
and County aforesaid to take acknowledgments, personally appeared , as
of LENNAR HOMES, LLC, a Florida limited liability company who
is ❑ personally known to me or ❑ produced as identification,
and that he/she acknowledged executing the same on behalf of said company in the presence of
two subscribing witnesses, freely and voluntarily, for the uses and purposes expressed therein.
WITNESS my hand and official seal in the State and County last aforesaid this day of
120
Signature of Notary
Name of Notary (typed, printed or stamped)
Commission Number:
Commission Expires:
I
Page 112 of 193
Signed, sealed and delivered
in the presence of -
Print
Name:
Print
Name:
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY THIS _ DAY OF
.20
LOW
Richard S. Geller, City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
CITY:
CITY OF OCOEE, FLORIDA, a
Florida municipal corporation
Rusty Johnson, Mayor
Attest:
Melanie Sibbitt, City Clerk
(SEAL)
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON .20
UNDER AGENDA ITEM NO.
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
and County aforesaid to take acknowledgments, personally appeared RUSTY JOHNSON and
MELANIE SIBBITT, personally known to me to be the Mayor and City Clerk, respectively, of
the CITY OF OCOEE, FLORIDA and that they severally acknowledged executing the same in
the presence of two subscribing witnesses, freely and voluntarily under authority duly vested in
them by said municipality.
WITNESS my hand and official seal in the State and County last aforesaid this day of
,20
Signature of Notary
Name of Notary (typed, printed or stamped)
Commission Number:
10
Page 113 of 193
JOINDER AND CONSENT
The HOA hereby executes this Fourth Amendment solely for the purpose of agreeing to
the obligation and waiver contained in Section 4(xi) of Article II of the Fourth Amendment and
for no other purpose.
Signed, sealed and delivered HOA:
in the presence of:
ARDEN PARK NORTH
HOMEOWNERS ASSOCIATION,
INC., a Florida not -for -profit
corporation
Print Name:
Print Name:
STATE OF
COUNTY OF
By:
Print Name:
Print Title:
I HEREBY CERTIFY that on this day, before me by means of ❑ physical presence or ❑
online notarization, an officer duly authorized in the State and County aforesaid to take
acknowledgments, personally appeared , as of
ARDEN PARK NORTH HOMEOWNERS ASSOCIATION, INC., a Florida not -for -profit
corporation who is ❑ personally known to me or ❑ produced
as identification, and that he/she acknowledged executing the same on behalf of said company in
the presence of two subscribing witnesses, freely and voluntarily, for the uses and purposes
expressed therein.
WITNESS my hand and official seal in the State and County last aforesaid this day of
,20
Signature of Notary
Name of Notary (typed, printed or stamped)
Commission Number:
Commission Expires:
12
Page 115 of 193
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Page 117 of 193
ESCROW AGREEMENT
(Clarke Road Improvements)
THIS ESCROW AGREEMENT (the "Agreement") is made and entered into this
day of 2023 (the "Effective Date") by and between LENNAR HOMES, LLC,
a Florida limited liability company whose mailing address is Suite 310, 6750 Forum Drive,
Orlando FL 32821 ("Lennar"), the CITY OF OCOEE, a Florida municipal corporation whose
mailing address is City of Ocoee, Attn.: City Manager, 150 North Lakeshore Drive, Ocoee, FL
34761 ("City"), and FISHBACK DOMINICK, a Florida limited partnership whose mailing
address is 1947 Lee Road, Winter Park, Florida 32789 ("Escrow Agent"). For purposes of this
Agreement, Lennar, City and Escrow Agent are each a "Party" and collectively are the "Parties".
WITNESSETH:
WHEREAS, Shuffield Lowman, P.A., has served as the original escrow agent for the City
Road Improvements described below; and
WHEREAS, the Ocoee City Commission has appointed Fishback Dominick its City
Attorney; and
WHEREAS, Fishback Dominick is agreeing to assume the responsibilities of Escrow
Agent with respect to the City Road Improvements described below; and
WHEREAS, Lennar and City entered into that certain Fourth Amendment to Development
Agreement (Arden Park) (the "Development Agreement"); and
WHEREAS, City previously planned, designed, engineered, constructed and maintained
a public road, known as Clarke Road, within the City; and,
WHEREAS, Lennar is the developer of the Arden Park residential community located
immediately west of Clarke Road and north and south of Clarcona-Ocoee Road within the City;
and
WHEREAS, as part of its mitigation of the impacts of the Arden Park development Lennar
has previously planned, designed, engineered and constructed certain improvements to Clarke
Road and dedicated the same to the City; and
WHEREAS, the Development Agreement contemplates that Lennar, at the City's sole cost
and expense, shall design, engineer, permit and construct a segment of Clarke Road designated as
"Section C" in the Development Agreement (the "Section C Improvements"); and,
Page 1 of 9
Page 118 of 193
WHEREAS, the Development Agreement further contemplates that Lennar, again at the
City's sole cost and expense, shall design, engineer, permit and construct certain other
improvements to Clarke Road south of Clarcona-Ocoee Road designated as Section D in the
Development Agreement (the "Section D Improvements"); and
WHEREAS, the Section C Improvements and the Section D Improvements are
collectively referred to herein as the "City Road Improvements;" and
WHEREAS, City has agreed to deposit, or cause to be deposited with Escrow Agent the
total amount of SEVEN MILLION EIGHT HUNDRED EIGHTY-EIGHT THOUSAND ONE
HUNDRED SEVENTY NINE AND 90/100 DOLLARS ($7,888,179.90) (the "Construction
Reserve"), all or a portion of which may be transferred from the prior escrow agent, Shuffield
Lowman, P.A., to be used to pay for Allowable Costs of the City Road Improvements;
WHEREAS, the Parties desire to enter into this Agreement evidencing their agreement
with respect to the construction of the City Road Improvements and the holding and disbursement
of the Construction Reserve.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by Escrow Agent, the Parties, each desiring to be legally bound,
hereby agree as follows:
1. Incorporation of Recitals; Defined Terms. The foregoing recitals are true and
correct and are hereby incorporated herein by reference. Any terms in this Agreement beginning
with an initial upper-case letter and not otherwise defined herein shall have the meaning attributed
thereto in the Development Agreement. The following terms used in this Agreement shall have
the meanings set forth below:
"Business Day" shall mean and refer to any day other than a Saturday, Sunday, or
any federal holiday or state holiday in Florida.
"Construction Contract" shall mean the contract for construction of the City Road
Improvements that will be entered into by and between Lennar and a general contractor
(the "General Contractor")
2. Establishment of Escrow Account. Within ten (10) business days of the execution
of this Escrow Agreement, City shall deliver, and/or give directions to cause the prior escrow
agent, Shuffield Lowman, PA., to deliver to Escrow Agent the Construction Reserve via wire
transfer of immediately available funds pursuant to the wiring instructions provided by Escrow
Agent. The wiring instructions for the Escrow Agent, Fishback Dominick, are attached hereto as
Exhibit "A." The Construction Reserve shall be held and disbursed by Escrow Agent in
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accordance with the terms of this Agreement. Escrow Agent shall hold the Construction Reserve
in a non -interest -bearing trust account.
3. Disbursements. Whenever Lennar wishes to make a draw upon the Construction
Reserve for the purposes set forth in this Agreement and the Development Agreement, Lennar
shall send a written notice (a "Disbursement Request") to City, with a copy to the Escrow Agent,
requesting a disbursement from the Construction Reserve. Each Disbursement Request shall be
in the form attached hereto as Exhibit "B", shall be certified by a Professional Engineer licensed
to practice in the State of Florida and shall be accompanied by one or more underlying invoices
and such other documentation as may be reasonable and customary to support payment
(collectively, with the Disbursement Request, the "Draw Documents").
(a) Upon receipt of Draw Documents the City shall have thirty (30) days to
direct the Escrow Agent to pay any undisputed portion thereof and to notify Lennar, in
writing, of any disputed portion or if the City requires additional documentation to
determine whether payment is appropriate. Lennar shall have ten (10) business days to
provide additional documentation and/or to submit a written request to meet with City staff
in order to attempt to resolve such dispute as provided in the Development Agreement.
(b) Upon receipt of written directions from the City (which directions may be
issued via electronic mail), or after thirty (30) days from receipt of a Disbursement Request
if the City has neither approved nor disputed the same, Escrow Agent shall, within two (2)
Business Days, pay undisputed amounts directly to each invoicing party as identified in the
Draw Documents. Simultaneously, Escrow Agent shall issue a separate payment to Lennar
for its management fee in an amount equal to nine and one-half percent (9.5%) of the total
of such direct vendor payments.
(c) In making any disbursements hereunder, Escrow Agent shall be entitled to
rely upon the accuracy or completeness of any Draw Documents submitted to Escrow
Agent.
(d) In the event there are funds remaining in the Construction Reserve after City
has met all of its payment obligations for the construction of the City Improvements the
City may request that Lennar confirm the same in writing to Escrow Agent at which point
Escrow Agent shall disburse any remaining funds in the Construction Reserve to the City.
4. Close of Escrow. Once the Construction Reserve has been disbursed in full, the
Escrow Agent shall have no further obligation hereunder. The full disbursement of the
Construction Reserve, however, shall not terminate or otherwise affect the remaining rights and
obligations, if any, between Lennar and City under the provisions of the Development Agreement.
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5. Escrow Agent. The Escrow Agent is acting as a stakeholder only with respect to
the Construction Reserve and if there is any dispute as to whether Escrow Agent is obligated to
deliver the Construction Reserve or as to whom the Construction Reserve is to be delivered,
Escrow Agent may refuse to make delivery and may continue to hold the Construction Reserve
until receipt by Escrow Agent of an authorization in writing, signed by City and Lennar, directing
the disposition of the Construction Reserve. In the absence of any such authorization, Escrow
Agent may hold the Construction Reserve until a final determination of the rights of the Parties in
an appropriate proceeding or may bring an appropriate action or proceeding for leave to deposit
the Construction Reserve in a court of competent jurisdiction pending such determination in which
event the Escrow Agent may recover all of its court costs and reasonable attorneys' fees. The non -
prevailing Party, i.e., City or Lennar, in any such action shall be solely obligated to pay such costs
and fees of the Escrow Agent, as well as the costs and reasonable attorneys' fees of the prevailing
party in accordance with the other provisions of this Agreement. City and Lennar recognize that
Escrow Agent's duties hereunder are only as specifically provided herein and are purely ministerial
in nature and City and Lennar therefore agree that Escrow Agent shall, so long as it acts in good
faith, have no liability to either except for any willful misconduct or gross negligence. Escrow
Agent shall have no duties or responsibilities except for those expressly set forth herein. Escrow
Agent shall not be bound by any modification of this Agreement unless the same is in writing and
signed by all parties hereto, and to the extent Escrow Agent's duties hereunder will in any way be
affected by said modification, Escrow Agent will be bound only if Escrow Agent has given its
prior written consent thereto.
6. Waiver of Conflict. The parties acknowledge that Escrow Agent also is serving
as an attorney for City. Lennar hereby waives any conflict of interest or claim therefore arising
from Escrow Agent's dual service as Escrow Agent and attorney for City. In the event of any
dispute or litigation arising under this Contract, other than a dispute directly dealing with Escrow
Agent's failure to abide by its duties hereunder, Lennar hereby consents to Escrow Agent's
continuing representation of City in any such dispute or litigation; provided, however, that upon
demand by Lennar, Escrow Agent will deposit any remaining Construction Reserve funds with an
appropriate court.
7. Expenses. In the ordinary course of the Agreement (excluding litigation expenses
which are addressed separately), City shall be responsible for the payment of all fees and costs
incurred by the Escrow Agent in connection with this Agreement and the holding of the
Construction Reserve pursuant to the terms hereof.
8. Financial Institutions - Escrow Account. The Construction Reserve held by
Escrow Agent shall be placed in a non -interest -bearing account by the Escrow Agent with an FDIC
insured financial institution with which the Escrow Agent holds accounts. Notwithstanding the
Escrow Agent's acquiescence in the selection of the financial institution at which the escrow
account of the Construction Reserve is maintained, Escrow Agent shall not be responsible or liable
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for: (a) any failure on the part of the financial institution at which the account of the Construction
Reserve is maintained; (b) the unavailability of Federal Deposit Insurance Corporation ("FDIC")
insurance on all or any portion of the Construction Reserve; (c) any inability or failure of said
financial institution to deliver the Construction Reserve or any portion thereof when required by
this Escrow Agreement; or (d) any matters beyond the direct and exclusive control of Escrow
Agent.
9. Notice. Any notice provided or permitted to be given under this Agreement must
be addressed to the party to be notified, be in writing and may be served (i) by depositing the same
in the United States mail, postage prepaid, registered or certified with return receipt requested, (ii)
by depositing the same with a nationally -recognized overnight courier for next Business Day
delivery, or (iii) by email transmission prior to 6:00 p.m. ET on any Business Day (provided that
a copy of any notice sent by email must additionally be contemporaneously sent to the addressee
by another method listed in this Section 10). Notice given in accordance with (i) and (ii) above
shall be effective upon deposit and notice given in accordance with (iii) above shall be effective
upon the date of dispatch. For purposes of notice, the addresses of the parties shall be as follows:
If to Lennar: Lennar Homes, LLC
Attn: Mark McDonald
Suite 310, 6750 Forum Drive
Orlando FL 32821
Phone:
E-mail: Mark.McDonald@Lennar.com
With a copy to: Fishback Dominick
1947 Lee Rd.
Winter Park, FL 32789
Attn: Richard Geller Esq.
Phone: (407) 262-8400
E-mail: rgeller@fishbacklaw.com
If to City: City of Ocoee
Attn: Mike Ruiner, Planning Director
150 N. Lakeshore Drive
Ocoee, FL 34761
Phone:
E-mail: MRumer@ocoee.org
With a copy to: Fishback Dominick
1947 Lee Rd.
Winter Park, FL 32789
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Attn: Richard Geller Esq.
Phone: (407) 262-8400
E-mail: rgeller@fishbacklaw.com
If to Escrow Agent: Fishback Dominick
1947 Lee Rd.
Winter Park, FL 32789
Attn: Richard Geller Esq.
Phone: (407) 262-8400
E-mail: rgeller@fishbacklaw.com
10. Amendment and Waiver. No provision of this Agreement may be amended, nor
will any waiver of any term of this Agreement be effective, unless in writing and signed by the
Party who is granting such waiver. Waiver of performance or satisfaction of timely performance
or satisfaction of any condition, covenant, requirement, obligation, or warranty by either Party will
not be deemed to be a waiver of the performance or satisfaction of any other condition, covenant,
requirement, obligation, or warranty unless specifically consented to in writing.
11. Governinu Law and Binding Effect. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida. Any action arising out of, or related
to this Agreement shall be brought in a court of competent jurisdiction in Orange County, Florida.
This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their
successors, heirs, legal representatives and assigns. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same instrument. In the event of any dispute between the Parties concerning this
Agreement or the Construction Reserve, each of the Parties knowingly and voluntarily waive any
right to a trial by jury.
IN WITNESS WHEREOF, each of the parties hereto has duly signed and sealed this
Agreement or caused such to be done, effective as of the date of this Agreement.
LENNAR HOMES, LLC CITY OF OCOEE, FLORIDA
C
Print Name:
Print Title:
C
Rusty Johnson, Mayor
Attest:
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FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND LEGALITY
Melanie Sibbitt, City Clerk
(SEAL)
THIS DAY OF , 20 ESCROW AGENT:
FISHBACK DOMINICK FISHBACK DOMINICK
By: By:
Richard S. Geller, City Attorney Richard S. Geller, City Attorney
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EXHIBIT "A"
Wiring Instructions to Fishback Dominick
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EXHIBIT `B"
LENNAR HOMES LLC ("Lennar") hereby submits the following invoices, copies of which are
attached hereto, for materials supplied and/or work performed in relation to the construction of
Clarke Road improvements in accordance with that certain Third Amendment to Development
Agreement (Arden Park) (the "Development Agreement") entered into by and between Lennar and
the City of Ocoee ("City"):
Supplier, Contractor Invoice #, Date and Brief description of
or Vendor Name Amount material / work.
SUBTOTAL
+9.5% Mgmt. Fee
Amount certified as
currently due.
and requests that City direct Escrow Agent, to pay each invoice directly to the issuer thereof from
the Construction Reserve and to further pay directly to Lennar the above -listed management fee.
The undersigned Florida licensed and registered Professional Engineer hereby certifies that he/she
has reviewed the invoices and that they accurately reflect materials delivered and/or work
performed in a good and workmanlike manner in accordance with the terms of the Construction
Contract and that there have been no changes thereto which have not been approved in writing by
the City. Lennar has not received any notices of intent to file liens or any other claims from any
subcontractors or suppliers performing work or supplying materials in furtherance of the
Construction Contract.
go
Print name:
Seal:
S:\AKA\CLIENTS\Ocoee, City of\Clarke Road Widening\Escrow agreement (REDLINED) - crd - 8 14 23.DOCX
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