HomeMy WebLinkAboutEmergency Item #03 Villas at Woodsmere - Performance Surety Escrow Agreement
:FOLEY
FOLEY & LARDNER LLP
ATTORNEYS AT LAW
AGENDA ITEM COVER SHEET
Meeting Date: October 6, 2009
Item # _~me~-enLj 'I+em .3
Reviewed By:
Contact Name:
Contact Number:
Dorothy E. Watson,
Assistant City Attorney
407 -244-3236
Department Director:
City Manager:
M/t/
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Subject: Villas at Woodsmere - Performance Surety Escrow Agreement
Background Summary:
Request for approval of Performance Surety Escrow Agreement to guarantee the improvements of
Villas of Woodsmere Subdivision and termination of the existing letter of credit guaranteeing the
same.
Issue:
The letter of credit guaranteeing the improvements of the Villas of Woodsmere is set to expire on
October 8. The replacement lender for the project, Citizens First Bank, has offered a cash escrow
of $60,200 in place of the letter of credit. In exchange for these funds, the City would also agree to
terminate the existing letter of credit. Foley & Lardner LLP has already received the proposed
escrow funds and is holding them pending approval of the Performance Surety Escrow Agreement
by the City.
Recommendations
It is respectfully recommended that the City Commission and Mayor approve the Performance
Surety Escrow Agreement and Termination of Irrevocable Letter of Credit and authorize the Mayor
and City Clerk to execute the same.
Attachments:
1. Staff Report
2. Performance Surety Escrow Agreement
3. Termination of Irrevocable Letter of Credit
Financial Impact:
None.
Type of Item:
!:I._14216611
D Public Hearing
D Ordinance First Reading
D Ordinance First Reading
D Resolution
xxxD Commission Approval
D Discussion & Direction
For Clerk's Dept Use.
D Consent Agenda
D Public Hearing
D Regular Agenda
D Original DocumenUContract Attached for Execution by City Clerk
D Original DocumenUContract Held by Department for Execution
Reviewed by City Attorney
Reviewed by Finance Dept.
Reviewed by ()
Paul E. Rosenthal
!:I._1421661 1
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IN'rERIM FUNnING ESCROW AGREEMENT
TIns TNTER1M FUNDING ESCROW AGREEMENT ("Agreement") is dated this 5th
day of October, 2009 by and bCt',>,ieen CITIZENS FIRST BANK, a Florida banking corporatIOn
whose address is 1341 Griffin Rd., Leesburg, FL 34748 ("Citizens') and FOLEY & LARDNER
LLP, a~' limited liability partnership whose address is I J 1 North Orange A venue, Suite 1800,
Orlando, FL 2802 ("Escrow Agent").
t?f'L W~ ~fll r\~
11 RI~ClT A LS
A. Citizens and the City ofOcoee, Florida, a Florida municipal corpordtion ("City'.l have
negotiated and preliminarily agreed upon the Performance Surety Escrow Agreement attached hereto
as Exhibit "A" (the "Performance Agreement);
B. City has requested that Citizens place the monies necessary to fund the Peri'onnance
Agreement in escrow with Es<.:row Agent pending the Lillal approval and execution of the
Performance Agreement; ,md
C. Escrow Agent and Citizens agree that the funds placed in escrow with Escrow Agent
shall be handled and disbursed in accordance with this Agreement.
NOW, THEREFORE, the parties hereto agre/;: as follows:
j. Upon execution of this Agreement, Citizens shall place SIXTY THOUSAND TWO
) [UNDRED AND 00/ 100 DOLLARS ($60,200.00) ill escrow with Escrow Agent ("Escrow Funds").
2. E;;crow Agent shall hold the funds in escrow and disburse the funds only in the
following manner:
a. Subject to the time limits set forth in sub part b of this paragraph, upon final
approval and execution of the Performance Agreement, Escrow Agent shall pay to City the Escrow
Funds for the purpose of funding the Perfonnance Agreement.
b. In the event the Perf0n11an<.:e Agreement is nol f(jlly approved ancl executed
on or before October 8. 2009, Escrow Agcnt shall return the Escrow Funds to Citizens by wire
transfer initiated no later than 10:00 a.tn. on October 9. 2009.
c. In the event that Escrow Agent becomes aware that City has requested any
tllOds pursuant to the Irrevocable Letter of Credit issued by First National Bank of Central Floridu
numbered 07 -13 and dated October 8, 2007, the Escrow Agent shall immediately return to Citizens
the fijlJ SIXTY HfOLJSAND TWO HUNDRED AND 0011 00 DOLLARS ($60,200.00) delivered
to Escrow Agent under this Agreement.
:3 Upon completion of the ohligations in Paragraph 2 hereof, Escrow Agent shall be
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released from all further obligations and liabilities arising hereunder.
4. 'TIlis Agreement shall be construed according to the laws of the Slate of Florida
Jurisdiction and Venue for any action hereunder shall lie with the Nmth ltldicial Circuit, in and for
Orange County, Florida.
5. The Escrow Agent shall have no liability hereunder except for the perform,mce by
it in good faith of all the acts to be perfonned hereunder, and except for its own willful misconduct
or gross negligence.
fN WITNESS WHEREOF, the parties hereto have eaused these presents to be signed as
of the date and year first above written.
CITIZENS FIRST BANK, a rlorida
banking co
~
By:
Name:
Title:
FOLEY & LARDNER LLP, a~Lv6~51':'
~:'tft;;Jl~
Puul E. Rosenthal, Partner
Page 2 of 2
Ufl/8(( "fJ'l
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PERFORMANCE SURETY ESCROW AGREEMENT
THIS PERFORMANCE SURETY ESCROW AGREEMENT (this "Agreement") is
entered into this __ day of October, 2009 by CITIZENS FIRST BANK, a Florida banking
corporation whose address is 1341 Griffin Rd., Leesburg, Florida 34748 ("Citizens"), and CITY
OF OCOEE, a Florida municipal corporation whose address is 150 North Lakeshore Dr.,
Ocoee, Florida 34761 (the "City").
RECITALS:
A. Citizens is the owner or beneficial owner of certain lots within the development
cornman Iy known as Villas at Woodsmerc located in the City of Ocoec as depicted in that plat
recorded at f>]at Book 65, Page 112, Public Records of Orange County, Florida ("Subdivision");
B. Baypointc Builders, LLC, a Florida limited liability company ("Baypointe"), has
bl~en and is currently the "Dcvcloper" as set forth and defined in the Declaration of Covcmmts
and Restrictions For Villas at Woodsmcrc recorded at Official Records Book 8683, Page 3228
Public Records of Orange County, Florida;
C. Baypointe is unable or unwilling to complete the infrastrueture of the Subdivi~ion
as required by the City;
D. Citizens, as the owner of the majority of the lots within the Subdivision, has
agreed to fund an escrow account able to be utilized by the City to remediatc certain work not
performed by Baypomte; and
E. '1l1c escrow funds are to be utilized to fund work to be perfonned by the City to
rcmediate those improperly constructed or incomplete improvements (the "Improvements")
idcntified by the City of Ocoee and set out in that letter dated September 17, 2009 and attached
hereto as Exhibit "A" (the "Letter").
NOW THEREFORE, the parties hereto agree as follows:
Section 1. Rt..'Citals, Citizens and City aeknowledge the truth and aceuracy of the
recitals set forth above. The Recitals set forth above are incorporated into and made part of this
/\ grccrn en t.
Section 2. Estahlishment of Escrow Fund. Citizens does hereby establish an escrow
fund with the ell)' ill the amount of SIXTY THOUSAND TWO HUNDRED AND 00/1 00
DOLLARS ($60,200.00) to be utilized by the City in the performance of the work called [or Jr1
:llt~ Letter. This escrow fund shall be placed by the City in an account at a lo<.:al fjnancial
institution and shall be disbursed only in accordance with the terms of this Agreement. Thc
escrowed tlmds shall be permitted to be commingled with the other funds of the City but shall be
accounted for under a separate ledger and segregated for use only in accordance with this
Agreement.
Section 3. City's Rieht to Draw on Escrow Fund. 'nle funds escrowed hereunder shall
be used by the City to complete the remedial work required pursuant to the specific enumerated
lIst set fiJrth in the Letter, together with those items discovered during the performance of the
remedial work which, in the reasonable discrction of the City's engineer, require work to be done
to complete or repair the infrastructure of the Subdivision to comply with the plans and
specifications for the Subdivision. In addition, City shall be permitted to charge 1) un
administration and oversight fce in an amount not to excced ten percent (10%) of the amount
paid to have the remedial work completed, and 2) a legal expense reimbursement fee equal to the
amount City is actually billed by Paul Rosenthal of Foley & Lardner LLP for the negotiation and
implementation of this Ah'Teement (upon request by Citizens, City shall provide copIes of
invoices to support the amount billcd and deducted from the funds escrowed hereunder).
Section 4. Terms and Conditions for Return of Escrow Fund. All funds escrowed
with the City pursuant to this Agreement not utilized as provided for in Section 3 hereof shall be
relurned to Citizcns less all bank charges with respect to the account maintenance charged by the
financial institution holding the escrowed funds. All unused escrowed funds held by the City
pursuant to this Agreement shall be returned to Citizens on the earlicr of I) the six (6) month
anniversary of this Agreement, or 2) within forty-five (45) days of completion of all work
contemplated being performed by the City in accordance with this Agreement. At the time
unused escrow funds are returned to Citizens, City shall deliver an accounting of those funds
utilized by City.
St..~tion 5. Construction. This Agreement shall be construed in accordance with the
laws of the State of Florida
Section 6. Contiu!!cncy. In thc cvent City requests any funds pursuant to that
Irrevocable LeUer of Credit issued by First National Bunk of Central Florida numbered 07.) J
and dated October 8, 2007, the City shall immediately return to Citizens the lull SIXTY
THOUSAND TWO HUNDRED AND 001100 DOLLARS ($60,.200,00) delivered to City under
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused tIlese presents to be signed as
or the lbte and year flrst above written.
CITIZENS FIRST BANK, a Florida
banking corporation
By:,
Name:
Title:
laddilional signUlures fu fbI/ow}
2
A"/TEST:
By: __._.....____ ...____. .......... ... ...._
Beth Eikenberry, City Clerk
:FOR THE USE AND RELIANCE BY THE
CITY OF OCOEE ONLY, APPROVED
AS TO FORMA ND LEGAUTY
This __om day of ____----.:J 2009
FOLEY & LARDNER LLP, a Florida
limited liability partnership
Uy:_.___ .._..._._......_.__
Paul Rosenthal, City Attorney
CITY OF OCOEE, FLORIDA, a
Florida municipal corporation
By:
S. Scott Vandergrit1, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON .. . 2009
tJNDF~R AGENDA ITEM NO,
3
Mil yor
S Scott Vand(~rgnrt.
EXHIBIT "A"
center ot Good [I
"\.\>e 'poll(
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i&m m iSSlQllerS
Cary Hood, Dlstnct 1
Hosnmary Wusen, Di:-;tnd :2
Rusty John~on, Distnct ::l
.Joel F. Keller, Dlstl'lct 4
Ci!xM.",n.~
Rohcrt Franh
Villas At Woudsmcre
2 year Walk Thru
9/17/09
Attendees:
City representative; Roger Densbcrger
First National Bank of Central Florida; Brendan Boyle (bboyk@fubcfla.com)
Citizens rirst Bank; Frank Stivcnder (frank.stivender@citizensfb.com)
Letter of Credit Number 07-13, First National Dank of Central Florida
Items that need to be addressed prior to 2 year maintenance warranty expiration or Letter of
Credit will be drawn upon to uddress-
1. Rc-grout and seal the manhole casting ut sanit.ury manhole No.2.
2. TIle entire sanitary system needs a light cleaning to remove residual sand and debris
resulting from construction.
3. Replace "Dead End" reflectors at end of the southwest stub street.
4. Removc and replace the header curb crossing the roadway at Lot #21.
5 Remove and replace the header curb crossing the roadway at Lot 1118.
6. Remove and replace the header curb at the southwest radius at Lot It 53.
7. Remove and replace the header curb crossing the roadway at Lot 119.
1S. Remove and replace the header eurb crossing thl! driveway at Lot # 9.
9. Remove and replace the header curb crossing the driveway at 1.0111 7.
10. Rcmovt: und replace the header curb at the southeast radius at the gtv.ebo.
J 1. Remove and replace the header curb at the southwest comer of the entry pavers.
12. Remove and replaee the broken ADA ramp adjacent to Lot 1t61.
13. Clear the vegetation and clean the inlct grates at all yard drains.
14. Remove the debris and unused construction materials across Lots +I 33-42.
15. A J" asphalt overlay is required aeross the entire pavement section as a condition of the
Certit1catc of Completion.
16. Remove the sock drain at inlets # El-7 and El.8.
It was noted tbat sevt:rul of the landscape plantings have not survived and the overall site is in
need of maintenance. These nced to be corrected and maintained on a regular ba.<;is or be subject
to Code Enforcement action.
c.ry of Ocoe(: . I SO N Lakesl10lc Dnvc: . Ococc. Florida 34761
pl'onc: (407) 905..]100. fax: (407) 656-RS04' www.cl.olOOee.n.Us
TERMINATION OF IRREVOCABLE LETTER OF CREDIT
That Irrevocalbe Letter of Credit issued by First National Bank of Central Florida bearing number
07 -13 and dated October 8, 2007 ( the "LC") issued for the benefit of City of Ocoee, Florida is
hereby terminated. All rights vested in the City ofOcoee by virtue of the LC are hereby released
and terminated and First National Bank of Central Florida shall have no liability to City ofOcoee
by virtue of the LC. City ofOcoee and First National Bank of Central Florida acknowledge that the
original LC has been surrendered to First National Bank of Central Florida together with this
termination and that no request to fund under the LC has been made by City of Ocoee upon
surrender of the original LC.
Dated this _ day of October, 2009.
FIRST NA TJONAL BANK OF CENTRAL
FLORIDA, a national bank
By:
Name:
Title:
ArrEST:
CITY OF OCOEE, FLORIDA, a
Florida municipal corporation
By:
By:
S. Scott Vandergrift, Mayor
Beth Eikenberry, City Clerk
FOR THE USE AND RELIANCE BY THE
CITY OF OCOEE ONLY. APPROVED
AS TO FORMA ND LEGALITY
This _ day of , 2009
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON , 2009
UNDER AGENDA ITEM NO.
FOLEY & LARDNER LLP, a Florida
limited liability partnership
By:
Paul Rosenthal, City Attorney
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