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HomeMy WebLinkAboutItem 08 Approval of an Escrow Agreement with Lamberts Cable Splicing Company City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org STAFF REPORT Meeting Date: August 20, 2024 Item #: 8 Contact Name: TJ Tomlinson Department Director: Jen Bolling Contact Number: Ext. 4301 City Manager: Robert Frank Subject: Approval of an Escrow Agreement with Lamberts Cable Splicing Company, LLC for Replacement of City’s Force Main. (Acting Utility Director Bolling) Background Summary: In July 2023, a subcontractor of Lamberts Cable Splicing Company, LLC (Lamberts) damaged the City’s 8- inch force main on Maguire Rd while installing a communication conduit. After investigating the extent of the damage caused and separation conflicts with the City’s force main, Lamberts agreed to design, permit, and replace approximately 300 feet of the City’s force main. The City is currently holding the issuance of Lamberts' right-of-way permits until the damage is repaired in accordance with the City’s standards. To avoid excessive disruption of Lamberts’ projects throughout the City, Lamberts has agreed to provide the City with a cash escrow in the amount of $350,000 to be held as security until the completion of the force main replacement. Once the cash escrow is established, the City shall release the hold on Lamberts’ right-of-way permits. Issue: Should the Honorable Mayor and City Commissioners approve the Escrow Agreement between the City of Ocoee and Lamberts Cable Splicing Company, LLC, for the design, permitting, and construction of the force main replacement? Recommendations: Staff recommends that the Honorable Mayor and City Commissioners approve the Escrow Agreement with Lamberts Cable Splicing Company, LLC. Attachments: 1. Escrow Agreement - Lamberts Financial Impacts: None. Type of Item: Consent ESCROW AGREEMENT This Escrow Agreement (this “Agreement”) between THE CITY OF OCOEE (“City) and LAMBERTS CABLE SPLICING COMPANY, LLC, a Florida limited company (“Lamberts”), and FISHBACK DOMINICK, LLP (“Escrow Agent”) dated as of the _____ day of August, 2024. RECITALS A. On or about July __, 2023, Lamberts damaged the City’s force main on Maguire Road. B. Lamberts has agreed to design, permit and construct a replacement of the City’s force main to the City’s Standards (the “Improvements”). C. Lamberts desires to continue to work within the City pending completion of the Improvements. D. Lamberts has agreed to escrow $350,000 (the “Escrowed Funds”) with the Escrow Agent to be held in escrow as security for completion of the Improvements in accordance with the terms of this Agreement. AGREEMENT In consideration of the sum of Ten and No/100 Dollars ($10.00), the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. The above referenced recitals are true and correct and are incorporated herein by reference. 2. Escrow Agent acknowledges receipt of the Escrowed Funds and agrees to hold and disburse the Escrowed Funds in accordance with this Agreement. 3. The Escrowed Funds shall be deposited in a non-interest bearing account. Escrow Agent may commingle funds received by it in escrow with escrow funds of others, and may, without limitation, deposit such funds in its custodial or escrow accounts with any reputable trust company, bank, savings bank, savings association, or other financial services entity, including any affiliate of Escrow Agent. It is understood that Escrow Agent shall be under no obligation to invest the funds deposited with it on behalf of any depositor, nor shall it be accountable for any earnings or incidental benefit attributable to the funds which may be received by Escrow Agent while it holds such funds. 4. Escrow Agent shall release the Escrowed Funds less legal fees to Lamberts upon receipt of written confirmation from City that Lamberts has completed construction and final clearance of the Improvements to the City’s Standards. In the event Lamberts has not completed construction of the Improvements by ________________, 2024, City may elect to complete the Improvements itself and will be entitled to a release of the Escrowed Funds as necessary to pay for completion of the Improvements and associated legal fees. 5. In the event a dispute arises relative to the party entitled to the Escrowed Funds, Escrow Agent shall have the right to either continue to hold the Escrowed Funds until the rights of Lamberts and City have 2 been finally adjudicated or they have resolved the dispute and Escrow Agent shall have been notified thereof in writing signed by Lamberts and City, or interplead the Escrowed Funds in a court of competent jurisdiction. 6. Nothing herein contained shall be deemed to impose upon Escrow Agent any duty to exercise discretion, it being the intention of the undersigned that Escrow Agent shall not be obligated to act, except in accordance with the directives of this Agreement. Escrow Agent shall be jointly indemnified by Buyer and Seller against any and all claims, liabilities, damages, costs, penalties, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees, including attorneys’ fees, paralegals’ fees and legal assistants’ fees, or charges of any character or nature which it may incur directly or indirectly arising from or in any way connected with this Agreement, whether or not litigation is instituted, including expenses and attorneys’ fees in connection with any interpleader action filed by Escrow Agent. Escrow Agent is hereby empowered to act and shall not incur any liability whatsoever for acting upon any document purporting or believed by Escrow Agent to be genuine. 7. Escrow Agent shall not incur any liability concerning the financial status or insolvency of any other party, or any misrepresentation made by any other party. 8. Escrow Agent shall not incur any liability concerning the legal effect, insufficiency, or undesirability of any instrument deposited with or delivered by or to Escrow Agent or exchanged by the parties hereunder, whether or not Escrow Agent prepared such instrument. 9. Escrow Agent shall not incur any liability concerning the default, error, action or omission of any other party to this Agreement. 10. Escrow Agent shall not incur any liability concerning any loss or impairment of funds that have been deposited in escrow while those funds are in the course of collection or while those funds are on deposit in a financial institution if such loss or impairment results from the failure, insolvency or suspension of a financial institution, or any loss or impairment of funds due to the invalidity of any draft, check, document or other negotiable instrument delivered to Escrow Agent. 11. Escrow Agent shall not incur any liability concerning the expiration of any time limit or other consequence of delay, unless a properly executed settlement instruction accepted by Escrow Agent has instructed Escrow Agent to comply with said time limit. 12. Escrow Agent shall not incur any liability concerning Escrow Agent’s compliance with any legal process, subpoena, writ, order, judgment or decree of any court, whether issued with or without jurisdiction and whether or not subsequently vacated, modified, set aside or reversed. 13. Escrow Agent shall not incur any liability concerning any shortfall in the sufficiency of the amount held in escrow to accomplish the purpose of the escrow. 14. Escrow Agent shall not incur any liability concerning any obligation to collect additional funds, unless such obligation is in writing and signed by Escrow Agent. 15. If any term, covenant, condition or provision of this Agreement shall be held to any extent to be invalid or unenforceable under applicable law, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby, but shall remain in full force and effect. 16. No modification of this Agreement shall be valid or binding upon the parties hereto unless in writing and executed with the formalities hereof. 3 17.In the event of the breach of this Agreement by any party, the other parties shall have the right to pursue any remedy provided by applicable law, including specific performance. Any party failing to comply with the terms of this Agreement will pay all expenses, including attorneys’ fees, paralegals’ fees, legal assistants’ fees and costs incurred by the other parties to this Agreement as a result of such failure. 18.The provisions of this Agreement shall apply to and bind the heirs, successors, personal representatives and assigns of the parties hereto. 19.Whenever used herein the singular number shall include the plural, the plural the singular and the use of any gender shall include all genders. 20.This Agreement and all documents relating to same shall be construed under the laws of the State of Florida. The venue of any action or suit brought in connection herewith shall be in Seminole County, Florida. 21.All notices, demands, requests and other communications required or permitted hereunder (a “Notice”) must be in writing and will be deemed to have been duly given (a) upon the date of the Notice i f delivered personally; or (b) upon the date received if delivered by facsimile or email, provided that a duplicate copy is promptly delivered by U.S. Mail, certified, return receipt requested, or by overnight courier which provides a receipt, such as Federal Express; or (c) upon the date following the date of the Notice if delivered by overnight courier which provides a receipt, such as Federal Express. In the case of the U.S. Mail or overnight courier, the Notice must have adequate postage prepaid, addressed to the appropriate party and marked to a particular individual’s attention as provided in this Section. The Notice will be effective upon being so deposited, but the time period in which a response to any Notice must be given or any action taken with respect to the Notice will commence to run from the date of receipt of the Notice by the addressee as evidenced by the return receipt. Rejection or other refusal by the addressee to accept or the inability of the air courier service to deliver because of a changed address of which no Notice was given will be deemed to be the receipt of the Notice sent as of the business day following deposit. If either party changes their address, that party must notify the other party of such change by Notice delivered in accordance with this Section. The initial addresses of the Parties will be as set forth below: If to City: City of Ocoee Attn: Jennifer Bolling 1 N. Bluford Drive Ocoee, FL 34761 Phone: (407) 905-3100 E-mail: jbolling@ocoee.org If to Lamberts: Lamberts, LLC _____________ _____________ Attn: ________ Email: Escrow Agent: Fishback Dominick 1947 Lee Rd. 4 Winter Park, FL 32789 Attn: Richard S. Geller, Esq. Phone: (407) 262-8400 E-mail: rgeller@fishbacklaw.com Any party hereto may, at any time by giving five (5) days’ written notice to the other parties hereto, designate any other address in substitution of the foregoing address to which such notice shall be given. The attorneys for the parties may provide notices on behalf of their respective clients. [SIGNATURES ON FOLLOWING PAGE] 5 Signed, sealed and delivered in the Presence of: By: _____________________________ Print Name: __________________________ Address: 1 N. Bluford Ave. Ocoee, FL 34761 By: _____________________________ Print Name: __________________________ Address: 1 N. Bluford Ave. Ocoee, FL 34761 ESCROW AGENT: FISHBACK DOMINICK, LLP By:______________________________ Richard S. Geller, City Attorney 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 LAMBERTS: LAMBERTS CABLE SPLICING COMPANY, LLC By:____________________________ Print Name:_____________________ Print Title: ______________________ CITY: CITY OF OCOEE, FLORIDA By:_____________________________ 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. ______.