HomeMy WebLinkAboutItem 06 Approval of Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Escrow Agreement for Ocoee Village Center, Phase 1 Off-Site
City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
STAFF REPORT
Meeting Date: October 17, 2023
Item #: 6
Contact Name: Martrivus Keaton Department Director: Michael Rumer
Contact Number: Ext. 1088 City Manager: Robert Frank
Subject: Approval of Two-Year Warranty Surety and Maintenance, Materials, and
Workmanship Escrow Agreement for Ocoee Village Center, Phase 1 Off-Site. (Development
Engineer Keaton)
Background Summary:
Ocoee Village Center, Phase 1 Off-Site property is located on the north side of Clarcona Ocoee Road, at the
intersection of Clarcona Ocoee Road and North Lakewood Ave., adjacent to S.R. 429. The property consists
of North Lakewood Ave (north of Clarcona), the swale for right-of-way drainage (running across parcel 05-22-
28-6160-14-031) which connects to dry retention pond N-3 (on parcel 05-22-28-6160-05-002). The
infrastructure improvements include public roadways, a stormwater collection system, and associated
landscaping. Identified punch list repairs are currently being completed and include pavers at the roundabout,
pavement patching, thermopast painting of the street markings, and signage. It is expected that within a few
weeks, the public off-site improvements will be completed and the developer will be bringing forward the two-
year warranty agreement for all of the public improvements.
As a requirement of the Land Development Code, the developer is required to furnish the City with a Surety to
cover any possible damages discovered during the next two years. The escrow amount needed to cover the
improvements is $25,998.37. In lieu of accepting a cash bond or Letter of Credit for this amount, the
Consortium members and staff are requesting the amount to be retained in an existing cash performance
bond which currently contains $574,120.87. The City's Finance Department will make a note of the amount to
be retained in the account holding the performance cash surety. The Phase 1 Maintenance surety and the
existing Performance Cash Surety approvals will be released upon the approval of the overall off-site two-year
maintenance agreement and surety which is expected to be approved at the November 7, 2023, City
Commission meeting.
Issue:
Should the Honorable Mayor and City Commissioners accept the Surety, as provided by Poulos & Bennett, for
the maintenance warranty for Ocoee Village Center, Phase 1 Off-Site and execute the amended Development
Agreement?
Recommendations:
The Development Services Department recommends the Honorable Mayor and City Commissioners approve
the acceptance of the Surety and the execution of the amended Development Agreement with Poulos &
Bennett for Ocoee Village Center, Phase 1 Off-Site .
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City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
Attachments:
1. MMW Escrow Agreement
2. Phase Plan
Financial Impacts:
There are no financial impacts on the City by accepting this warranty Surety.
Type of Item: Consent
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MAINTENANCE, MATERIALS, AND WORKMANSHIP
ESCROW AGREEMENT
This Agreement (the “Agreement”) is entered into this ___ day of October, 2023, by
OCOEE VILLAGE DEVELOPER’S CONSORTIUM, an unincorporated association of
members consisting of Ocoee Village Residential LLC, a Delaware limited liability company
(“NRP”), Kimaya Village Residential LLC, a Florida limited liability company (“Park Square”) and
DKC Ocoee Village Center SE, LLC, a Florida limited liability (“Konover”), hereinafter referred to
as the "Developers" and the CITY OF OCOEE, a Florida municipal corporation, hereinafter
referred to as the "City".
WHEREAS, the Developers and Ocoee Development IV, LLC (“Original Developer”) are
the owners of certain real property located in Orange County, Florida more fully described in the
attached Exhibit "A" which exhibit is incorporated herein by this reference (the "Property"); and
WHEREAS, Developers are in the process of constructing on the Property, a mixed
use project referred to as Ocoee Village Center (the "Center") under the City’s Subdivision
Regulations and pursuant to the following approvals granted by the Ocoee City Commission
(collectively, the “Subdivision Plan”), to wit:
(a) Case No. RZ-18-06-09, whereby on October 6, 2020, the Ocoee City Commission
approved Ordinance No. 2019-011, rezoning the Property to PUD, under the Ocoee Land
Development Code, as amended by Ordinance No. 2020-024 approved by the Ocoee City
Commission on October 6, 2020 (collectively, the “Ocoee Village Center PUD”); and
(b) Case No. CPA-2018-006, whereby on October 6, 2020, the Ocoee City Commission
approved Ordinance No. 2019-010, amending the Ocoee Comprehensive Plan to change
the Future Land Use Designation for the Property to “High Density Residential and
Commercial” (the “Land Use Plan Amendment”); and
(c) Project No. LS-2019-005, whereby on October 6, 2020, the Ocoee City Commission
approved the Preliminary/Final Site Plan for the Townhomes at Ocoee Village Center
(the “Townhome Site Plan Approval”); and
(d) Project No. LS-2019.007, whereby on October 6, 2020, the Ocoee City Commission
approved the Preliminary/Final Site Plan for the Allure Apartments at Ocoee Village
Center (the “Apartment Site Plan Approval”); and
(e) Project No. LS-2019-009, whereby on October 6, 2020, the Ocoee City Commission
approved the Preliminary/Final Site Plan for the Southeast Commercial at Ocoee Village
Center (the “Southeast Commercial Site Plan Approval”); and
WHEREAS, in connection therewith, the Developers have installed with the approval of
the City certain roads, streets, drainage works, and/or other improvements (the "Improvements")
under the provisions, conditions, and requirements of the City's Subdivision Regulations and the
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Subdivision Plan; and
WHEREAS, under Section 4-4, Subdivision Review Process, of the City's Land
Development Code, Developers are required to warrant the maintenance, materials, and
workmanship of the Improvements constructed by Developer within the Center; and
WHEREAS, Section 4-4, Subdivision Review Process, of the City's Land Development
Code provide that Developers may guaranty such maintenance, materials, and workmanship by
placing a cash escrow with the City; and
WHEREAS, Developers wish to establish an escrow fund in order to guaranty the
maintenance, materials, and workmanship of the Improvements within the Subdivision as required
by Section 4-4, Subdivision Review Process, of the Land Development Code; and
WHEREAS, pursuant to a Resolution dated October ____, 2023 and pursuant to the
authority cited therein, NRP and Park Square, as the 2/3 majority vote of the duly appointed
delegates of the Ocoee Village Developer’s Consortium, authorized and approved the execution of
this Agreement on behalf of the Ocoee Village Developer’s Consortium.
NOW THEREFORE, the parties agree as follows:
SECTION 1. ESTABLISHMENT OF ESCROW FUND.
Developers hereby establish an escrow fund with the City in the amount of $25,998.37 to
guaranty the maintenance, materials, repair, replacement, workmanship, and structural integrity of
the Improvements. This escrow fund shall be placed by the City in a non-interest bearing account at
a local financial institution and shall be disbursed only in accord with the terms of this Agreement.
SECTION 2. TERMS AND CONDITIONS FOR RETURN OF ESCROW FUND.
In the event Developers shall jointly and severally maintain the Improvements in a first class
condition for a period of two (2) years from the date of issuance of the Certificate of Completion for
the Improvements, and if Developers shall jointly and severally, replace all paving or other
structures which within said two (2) year period shall be found by the City not to comply with the
City’s Subdivision Regulations and the Subdivision Plan, and that if the Developers replace any
Improvements the materials, workmanship, or structural integrity of which shall be found by the
City not to comply with the Subdivision Plan or the City’s Subdivision Regulation for a two (2) year
period following issuance of the Certificate of Completion by the City, Developers, jointly and
severally shall pay any and all costs or expenses incidental to the performance of any work required
to be performed hereunder, then the monies escrowed hereunder less an administrative fee of two
(2) percent which shall be retained by the City and less all bank charges with respect to the
maintenance of the escrow fund shall be returned to the Developers.
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SECTION 3. CITY'S RIGHT TO DRAW ON ESCROW FUND.
The funds escrowed hereunder shall be used by the City only to repair or replace the
Improvements deemed by the City to not comply with the Subdivision Plan or the City’s
Subdivision Regulations, except as mutually agreed to by the parties in writing. If at any time
during the two (2) year period following the issuance of the Certificate of Completion for the
Improvements the City notifies Developers in writing of any deficiency or fault in the materials,
workmanship, or structural integrity of the Improvements, and Developers fail to correct such
deficiency or fault to the satisfaction of the City within thirty (30) days of such written notice, then
the City may make such corrections, the cost of which shall be paid for out of the escrow fund for
this purpose without further notice to Developers.
Notwithstanding anything contained in Section 2 above, in the event the City has notified
Developers of a deficiency or fault as provided above, the term of this Agreement shall continue
until such deficiency or fault is corrected.
SECTION 4. CONTINUED APPLICABILITY OF SUBDIVISION
REGULATIONS.
This Agreement shall not be construed to relieve or release Developers from any of its
obligations under the City Subdivision Regulations or the Subdivision Plan with respect to the
Improvements. Further, the amount of the escrow fund and payment into and/or disbursement of
any or all of the escrow fund in no way relieves Developers of their obligations under the
Subdivision Plan and the City’s Subdivision Regulations.
SECTION 5. DEVELOPERS’ AUTHORITY.
In the event only two (2) of the Developers execute this Agreement, those Developers so
executing hereby confirm, covenant and warrant that they have the authority to bind the members
that constitute the Ocoee Village Developers Consortium to this Agreement and each of the
executing Developers are bound to this Agreement even if the non-executing Developer is not so
bound.
SIGNATURES TO FOLLOW
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IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed as of the
date and year first above written.
DEVELOPER:
Witnesses:Kimaya Ocoee Village, LLC, a Foreign limited liability
company
By:
Printed Name: Name:
Title:
Printed Name:
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me this ____ day of ____________, 2023, by
______________________, as ______________ of Kimaya Ocoee Village, LLC, a Foreign limited
liability company, on behalf of the company. He/she appeared by (check one) physical appearance or
online notarization, and (check one) is personally known to me or has produced
______________ as identification.
Print Name:
Notary Public
My Commission Expires:
Commission Number:
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DEVELOPER:
Witnesses:Ocoee Village Residential LLC, c/o The NRP Group,
a Foreign limited liability company
By:
Printed Name: Name:
Title:
Printed Name:
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me this ____ day of ____________, 2023, by
______________________, as ______________ of Ocoee Village Residential LLC, a Foreign limited
liability company, on behalf of the company. He/she appeared by (check one) physical appearance or
online notarization, and (check one) is personally known to me or has produced
______________ as identification.
Print Name:
Notary Public
My Commission Expires:
Commission Number:
Page 148 of 782
OCOEE VILLAGE DEVELOPER’S CONSORTIUM, AN UNINCORPORATED
ASSOCIATION OF MEMBERS PURSUANT TO THAT CERTAIN CERTIFICATE OF
AUTHORITY DATED SEPTEMBER ___, 2023:
Witnesses:Kimaya Ocoee Village, LLC, a Foreign limited liability
company
By:
Printed Name: Name:
Title:
Printed Name:
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me this ____ day of ____________, 2023, by
______________________, as ______________ of Kimaya Ocoee Village, LLC, a Foreign limited
liability company, on behalf of the company. He/she appeared by (check one) physical appearance or
online notarization, and (check one) is personally known to me or has produced
______________ as identification.
Print Name:
Notary Public
My Commission Expires:
Commission Number:
Page 149 of 782
Witnesses:Ocoee Village Residential LLC, c/o The NRP Group,
a Foreign limited liability company
By:
Printed Name: Name:
Title:
Printed Name:
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me this ____ day of ____________, 2023, by
______________________, as ______________ of Ocoee Village Residential LLC, a Foreign limited
liability company, on behalf of the company. He/she appeared by (check one) physical appearance or
online notarization, and (check one) is personally known to me or has produced
______________ as identification.
Print Name:
Notary Public
My Commission Expires:
Commission Number:
Page 150 of 782
THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP ESCROW AGREEMENT
FOR OCOEE VILLAGE CENTER IS HEREBY JOINED IN AND CONSENTED TO BY THE
ORIGINAL DEVELOPER.
ORIGINAL DEVELOPER:
OCOEE DEVELOPMENT IV, LLC,
A Florida limited liability company
________________________________
Richard C. Wohlfarth, Manager
STATE OF FLORIDA
COUNTY OF ________
The foregoing instrument was acknowledged before me this ____ day of ____________, 2023, by Richard
C. Wohlfarth, as Manager of Ocoee Development IV, LLC, a Florida limited liability company, on behalf of
the company. He/she appeared by (check one) physical appearance or online notarization, and
(check one) is personally known to me or has produced ______________ as identification.
Print Name:
Notary Public
My Commission Expires:
Commission Number:
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CITY:
ATTEST: CITY OF OCOEE, FLORIDA,
a Florida municipal corporation
By: By: _____________________________
City Clerk Mayor
(SEAL)
FOR THE USE AND RELIANCE BY THE
CITY OF OCOEE ONLY. APPROVED
AS TO FORM AND LEGALITY
this ___________ day of
_____________________, 20___.
FISHBACK DOMINICK
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON _____________________, 20___
UNDER AGENDA ITEM NO. ______.
By: ______________________________
City Attorney
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EXHIBIT “A”
(Legal Description of Real Property Constituting the Subdivision)
Page 153 of 782
Subject: Infrastructure Turnover Phasing Exhibit
Created: 9/11/2023 Revised: n/a
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