HomeMy WebLinkAboutItem 04 Approval of Performance Surety and Agreement for Ocoee Village Center Offsite Potable-Reclaim Cross Connection
City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
STAFF REPORT
Meeting Date: April 2, 2024
Item #: 4
Contact Name: Martrivus Keaton Department Director: Michael Rumer
Contact Number: Ext. 1088 City Manager: Robert Frank
Subject: Approval of a Performance Surety and Agreement for Ocoee Village Center Offsite
Potable-Reclaim Cross Connection. (Development Engineer Keaton)
Background Summary:
The subject property is located within public Right of Way, in the Northeast Corner of the intersection at North
Lakewood Ave and 2nd Ave. The developer will complete infrastructure improvements, including a potable-
reclaim water cross-connection and associated landscaping.
The Ocoee Village Developer’s Consortium is installing the cross-connection post-offsite development;
therefore, the developer is required to provide a Surety covering the outstanding proposed improvements as
approved in the Final Site Plans for Ocoee Village Center Offsite Potable-Reclaim Cross Connection. The
Developer, Ocoee Village Developer’s Consortium, has provided the City with a cash escrow in the amount of
$100,000.
Once the cross connection installation is complete, the Ocoee Village Center Offsite Maintenance, Materials,
and Workmanship Escrow Agreement will be amended to include reclaim and cross connection. The two-year
warranty period will start on the date of the approved amended agreement.
Issue:
Should the Honorable Mayor and City Commissioners approve the acceptance of the Performance Surety as
provided by Ocoee Village Developer’s Consortium, for the Ocoee Village Center Offsite Potable-Reclaim
Cross Connection and execute the Performance Agreement?
Recommendations:
The Development Services Department recommends the Honorable Mayor and City Commissioners approve
the Surety and the execution of the Performance Agreement with Ocoee Village Developer’s Consortium, for
the Ocoee Village Center Offsite Potable-Reclaim Cross Connection.
Attachments:
1. Performance Surety Agreement
Financial Impacts:
There are no financial impacts to the City by accepting this Performance Surety.
City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
Type of Item: Consent
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PERFORMANCE SURETY ESCROW AGREEMENT
THIS PERFORMANCE SURETY ESCROW AGREEMENT (this “Agreement”) is
entered into this ____ day of ___________, 2024 by OCOEE VILLAGE DEVELOPERS
CONSORTIUM, an unincorporated association of members (the “Consortium”), the
addresses of the members of the Development Committee thereof being set forth in the signature
blocks to this Agreement, and the CITY OF OCOEE, a Florida municipal corporation, whose
address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (the “City”).
W I T N E S S E T H:
WHEREAS, OCOEE DEVELOPMENT IV, LLC, a Florida limited liability company
(the “Developer”) commenced construction of a mixed use project referred to as Ocoee Village
Center (the “Center”) and, in connection therewith and with the approval of the City, has
installed certain roads, streets, sewers, water systems, drainage works, and/or other
improvements (the “Improvements”) under the provisions, conditions, and requirements of the
City’s Subdivision Regulations and 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, the Consortium, acting by and through a “Development Committee,” is
composed of the following parties, to wit: (i) Kimaya Ocoee Village, LLC, a Florida limited
liability company, (ii) Ocoee Village Residential LLC, a Delaware limited liability company, and
(iii) DKC Ocoee Village Center SE, LLC, a Florida limited liability company, the foregoing be
collectively referred to in this Agreement as the “Developers”; and
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WHEREAS, the Developers are obligated to complete the construction and installation
of a reclaimed water line and jumper (the “Improvements”) prior to the issuance of the
Certificate of Completion; and
WHEREAS, the Developers have requested issuance of a Certificate of Completion prior
to completion of the Improvements; and
WHEREAS, the Consortium has elected to place cash in escrow with the City in order to
so guarantee the completion of the Improvements within the Center.
NOW THEREFORE, the parties agree as follows:
SECTION 1. Establishment of Escrow Fund.
The Consortium does hereby establish an escrow fund (the “Escrow Fund”) with the City
in the amount of ONE HUNDRED THOUSAND AND 00/100 DOLLARS ($100,000.00) to
guarantee the completion of the Improvements within the Center. 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 accordance with the terms of this Agreement. The Escrow Fund may be
commingled with the other funds of the City but shall be accounted for under a separate l edger
and segregated for use only in accordance with this Agreement.
SECTION 2. Terms and Conditions for Return of Escrow Fund.
In the event the Consortium complies with the terms and conditions of this Agreement,
these conditions being more specifically the completion of the Improvements in accordance with
the ordinances and regulations of the City of Ocoee, Florida, and according to the plans,
specifications and schedules covering said work and such approved additions, amendments or
alterations as may be made in the plans, specifications and schedules for such work as approved
by the City and completes all said work on or before ninety (90) days from the date of this
Agreement (the “Construction Deadline”), as evidenced by the City’s issuance of a Certificate of
Completion or equivalent document, then the monies remaining in the Escrow Fund less
reasonable administrative expenses and attorneys’ fees and costs incurred by the City in
exercising or otherwise enforcing its rights under this Agreement shall be returned to the
Consortium in the following shares (the “Shares”), to wit: (i) forty-five percent (45%) to
Kimaya Ocoee Village, LLC, (ii) twenty-two percent (22%) to Ocoee Village Residential LLC,
and (iii) thirty-three percent (33%) to DKC Ocoee Village Center SE, LLC.
SECTION 3. City’s Right to Draw on Escrow Fund.
Unless otherwise mutually agreed to by City and Consortium, the Escrow Fund shall be
used by the City only (a) to complete the Improvements upon the failure or refusal of the
Consortium to complete the Improvements by the Construction Deadline, (b) to cure a breach by
Consortium of its obligations under this Agreement that remains uncured after thirty (30) days
prior written notice to the Consortium (or such additional period of time as is reasonably
required to facilitate a cure using diligent efforts), and/or (c) to pay for actual, documented,
reasonable administrative expenses and attorneys’ fees and costs paid or incurred by the City
(excluding amounts not actually paid or payable to third parties) in exercising or otherwise
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enforcing its rights under this Agreement that remain unpaid after thirty (30) days prior written
notice to the Consortium that such fees and costs are due, which notice shall be accompanied by
reasonably detailed supporting documentation of same.
If the Consortium fails or refuses to complete the Improvements by the Construction
Deadline, taking into account any extensions thereof which may be granted by the City in writing
in its sole discretion, then the City may, but shall not be obligated to, complete the
Improvements, the cost of which shall be paid for out of the Escrow Fund upon thirty (30) days’
prior written notice to the Consortium. In the event the City undertakes completion of the
Improvements, then, subject to the limitations set forth below, the City shall also be entitled
reimbursement of all actual, documented, reasonable 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 actions undertaken pursuant to this Agreement.
SECTION 4. Right of Entry for Corrective Activities.
In the event the City undertakes to complete the Improvements, then in such event the
Consortium hereby grants to the City and its employees, contractors and representatives, the
right to enter upon the lands of the Center and the Improvements for the purpose of performing
any such completion activities.
SECTION 5. 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 Consortium, or (ii) to undertake the completion of
any Improvements. Further, the City shall have no liability to the Consortium or any third
parties with respect to any such actions undertaken by the City, except for (i) misappropriation of
any part of the Escrow Fund, and (ii) liability for torts committed by the City; subject, however,
to the provisions of Section 768.28, Florida Statutes.
SECTION 6. Excess Funds.
Upon Completion (as defined below), the City shall promptly deliver the balance of the
Escrow Fund, if any, to the members of the Consortium in the Shares identified in Section 2
above. As used herein, “Completion” shall mean that all of the Improvements within the Center
have been completed to the satisfaction of the City as evidenced by the City’s issuance of a
Certificate of Completion or equivalent document.
SECTION 7. Continued Applicability of Subdivision Regulations.
This Agreement shall not be construed to relieve or release the Consortium from any of
its obligations under the City Subdivision Regulations with respect to the Improvements.
SECTION 8. Notices.
Notices permitted or required by this Agreement to be sent to the Consortium, in order to
be effective, shall be delivered by certified mail, overnight delivery, hand-delivery, fax, or e-
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mail, as applicable, to the delegates of the Consortium at the addresses set forth below their
signatures in this Agreement,
SECTION 9. Construction.
This Agreement shall be construed in accordance with the laws of the State of Florida.
[Signature Page Follows]
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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.
CONSORTIUM:
By: Its 3-Member Development Committee
__________ ___________________
Randy Jones, delegate appointed by Kimaya
Ocoee Village, LLC, 5200 Vineland Road,
Suite 200, Orlando, FL 32801, Phone (407)
529-3048, Fax (407) 529-3100, E-Mail
rjones@parksquarehomes.com
_____________________________________
Dan Brenner, delegate appointed by Ocoee
Village Residential LLC, c/o The NRP Group,
1228 Euclid Avenue, Floor 4, Cleveland, OH
44115, Phone (Cell) 216-337-8900, E-Mail
dbrenner@nrpgroup.com
_______________
Jacob Gerb, delegate appointed by DKC Ocoee
Village Center SE, LLC, 431 Fairway Drive,
Suite 201, Deerfield Beach, FL 33441 Phone
(954) 354-8282, E-Mail
jgerb@konoversouth.com
ATTEST:
By:
Melanie Sibbitt, City Clerk
(SEAL)
CITY:
CITY OF OCOEE, FLORIDA, a Florida
municipal corporation
By:
Rusty Johnson, Mayor
Jacob Gerb (Mar 26, 2024 09:59 EDT)
Randy Jones (Mar 26, 2024 11:22 EDT)
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FOR THE USE AND RELIANCE BY THE
CITY OF OCOEE ONLY. APPROVED
AS TO FORM AND LEGALITY
this ___________ day of
___________________, 20__.
Fishback Dominick LLP
By:
Richard S. Geller, City Attorney
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON _____________, 20__
UNDER AGENDA ITEM NO. ______
Performance Surety Escrow Agreement - Ocoee
Village Center-2024 Improvements (1)
Final Audit Report 2024-03-26
Created:2024-03-26
By:Jacob Gerb (jgerb@konoversouth.com)
Status:Signed
Transaction ID:CBJCHBCAABAAXBwK6CjqL2xqhFJek6hAjUUuUxcdeTmo
"Performance Surety Escrow Agreement - Ocoee Village Center
-2024 Improvements (1)" History
Document created by Jacob Gerb (jgerb@konoversouth.com)
2024-03-26 - 1:55:10 PM GMT- IP address: 50.204.209.150
Document emailed to Dan Brenner (dbrenner@nrpgroup.com) for signature
2024-03-26 - 1:57:31 PM GMT
Email viewed by Dan Brenner (dbrenner@nrpgroup.com)
2024-03-26 - 1:58:08 PM GMT- IP address: 104.47.66.126
Document e-signed by Dan Brenner (dbrenner@nrpgroup.com)
Signature Date: 2024-03-26 - 1:59:10 PM GMT - Time Source: server- IP address: 98.157.245.73
Document emailed to Jacob Gerb (jgerb@konoversouth.com) for signature
2024-03-26 - 1:59:12 PM GMT
Document e-signed by Jacob Gerb (jgerb@konoversouth.com)
Signature Date: 2024-03-26 - 1:59:42 PM GMT - Time Source: server- IP address: 50.204.209.150
Document emailed to Randy Jones (rjones@parksquarehomes.com) for signature
2024-03-26 - 1:59:44 PM GMT
Email viewed by Randy Jones (rjones@parksquarehomes.com)
2024-03-26 - 3:21:48 PM GMT- IP address: 75.112.142.34
Document e-signed by Randy Jones (rjones@parksquarehomes.com)
Signature Date: 2024-03-26 - 3:22:18 PM GMT - Time Source: server- IP address: 75.112.142.34
Agreement completed.
2024-03-26 - 3:22:18 PM GMT