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HomeMy WebLinkAbout2011-001 Maintenance, Materials and Workmanship Agreement RESOLUTION NO. 2011-001 A RESOLUTION OF THE CITY OF OCOEE, FLORIDA, ADOPTING THE FOLLOWING ADDITIONAL FORM FOR THE IMPLEMENTATION OF THE LAND DEVELOPMENT CODE PURSUANT TO SECTION 1 -13 OF CHAPTER 180 OF THE OCOEE CITY CODE: MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT FOR USE WITH LETTER OF CREDIT; AUTHORIZATION THE MAYOR AND CITY CLERK TO EXECUTE AGREEMENTS CONSISTENT THEREWITH; PROVIDING THAT THIS RESOLUTION IS SUPPLEMENTAL TO PREVIOUS RESOLUTIONS ADOPTING LAND DEVELOPMENT CODE FORMS; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Section 1 -13 of Chapter 180 of the Code of Ordinances for the City of Ocoee authorizes the City Commission of the City of Ocoee to from time to time adopt by resolution forms for the implementation of the Land Development Code; and WHEREAS, forms for the implementation of the Land Development Code have been prepared by the staff of the City of Ocoee, and the City Commission of the City of Ocoee, after reviewing the forms, desires to adopt and approve such forms. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA: SECTION ONE: Authority. The City Commission of the City of Ocoee has the authority to adopt this Resolution pursuant to Section 1 -13 of Chapter 180 of Code of Ordinances of the City of Ocoee, Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. SECTION TWO: Additional Land Development Code Form. The City Commission of the City of Ocoee hereby adopts and approves the additional CITY OF OCOEE LAND DEVELOPMENT CODE FORM as follows: Maintenance, Materials, and Workmanship Agreement for Use with Letter of Credit. SECTION THREE: Authorization to Execute Agreements. The Mayor and City Clerk are hereby authorized to execute Maintenance, Materials, and Workmanship Agreements in substantially the form attached hereto as Exhibit "A" when accepting a Letter of Credit to guaranty maintenance, materials and workmanship. ORLA_1688244.1 SECTION FOUR: Resolution Supplemental. This Resolution is supplemental to Resolution Nos. 92 -12, 92 -18, and all resolutions adopting Land Development Code Forms which may have heretofore been or may be hereafter adopted by the City Commission of the City of Ocoee. SECTION FIVE: Severability. If any section, subsection, sentences, clause, phrase or portion of this Resolution is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. SECTION SIX: Conflicts. All resolutions, parts of resolutions or acts of the City Commission of the City of Ocoee in conflict herewith are hereby repealed and rescinded. SECTION SEVEN: Effective Date. This Resolution shall become effective immediately upon passage and adoption. PASSED AND ADOPTED this k5 day of Vebcuar , 2011. APPROVED: ATTEST: CITY OF OCOEE, FLORIDA f ."" \ ` ^ ` -IVY SLTA/a_ - " v L i r _.._ Bet ikenberry, City Clerk S. Scott Vandergrift, Mayor (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING APPROVED AS TO FORM AND UNDER AGENDA ITEM NO. 8 LEGALITY THIS JfDAY OF FAai , 2011 FOLEY LARDNER LLP AlcAe By: City Attorney -2- ORLA_1688244.1 EXHIBIT "A" MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT (SUBDIVISION NAME / PHASE: ) THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT (this "Agreement ") is entered into this day of , 20 by ,a (the "Developer ") and the CITY OF OCOEE, a Florida municipal corporation, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (the "City "). WITNESSETH: WHEREAS, Developer, or its predecessor -in- interest or its predecessor -in title, has developed and/or constructed a subdivision known as (the "Subdivision ") and in connection therewith has installed with the approval of the City certain roads, streets, sewer, water and reuse systems, drainage facilities (including retention and detention ponds), and/or other improvements (collectively, the "Improvements ") under the provisions, conditions, and requirements of the City's Subdivision Regulations and the following Final Subdivision Plan (or Preliminary/Final Subdivision Plan) approval by granted the Ocoee City Commission on , 20 [Insert Description of FSP or P /FSP, as applicable] ; and WHEREAS, the Subdivision is located within certain real property located in the City of Ocoee, Orange County, Florida, as more fully described in the attached Exhibit "A" which exhibit is incorporated herein by this reference (the "Property "); and WHEREAS, under Section 4 -4, Subdivision Review Process, of the City's Land Development Code, Developer is required to guaranty the maintenance, materials, and workmanship of the Improvements within the Subdivision; and WHEREAS, in order to obtain the issuance of a Certificate of Completion with respect to the Improvements, the Developer desires to guaranty such maintenance, materials, and workmanship by having (the "Bank ") (or such other bank as may be acceptable to the City) establish an Irrevocable Standby Letter of Credit in favor of the City in substantially the form attached hereto as Exhibit "B" and by this reference made a part hereof ( "Letter of Credit "). NOW THEREFORE, the parties agree as follows: -3 ORLA_1688244.1 SECTION ONE: Establishment of Letter of Credit. Developer does hereby agree to have Bank establish the Letter of Credit in favor of the City in the amount of DOLLARS ($ ) to guaranty the maintenance, materials, workmanship, and structural integrity of the Improvements and the other obligations of the Developer under this Agreement. The Letter of Credit shall be established and drawn upon only in accordance with the terms of the Letter of Credit and this Agreement. SECTION TWO: 2 - Year Warranty Period. For a period of two (2) years from the date of issuance of the Certificate of Completion (the "Warranty Period "), the Developer shall maintain the Improvements in a first class condition and shall repair, correct and/or cure any Deficiency (as defined in Section 3 below) within thirty (30) days of receipt of written notice of a Deficiency from the City. The Developer shall pay any and all costs or expenses incidental to the performance of any such work. The City may provide notices of a Deficiency from time to time during the Warranty Period. SECTION THREE: City's Right to Draw on Letter of Credit. If at any time during the Warranty Period, the City notifies Developer in writing (i) that the Improvements have not been maintained in a first class condition, (ii) that paving or other structures within the Subdivision have been found by the City to not be in compliance with the Subdivision approval, and/or (iii) that there is a deficiency or fault in the materials, workmanship, or structural integrity of the Improvements which has been found by the City to not be in compliance with the Subdivision approval (collectively, a "Deficiency ") and Developer fails to repair, correct and/or cure such Deficiency to the satisfaction of the City within thirty (30) days from receipt of the notice thereof as set forth in Section 2 above, then the City may draw upon the Letter of Credit without further notice to Developer in order to establish a cash escrow for the performance of the Developer's obligations under this Agreement (the "Cash Escrow "). Additionally, the City may draw on the Letter of Credit in order to establish a Cash Escrow in such amounts as the City deems necessary or appropriate (a) in the event of a default by Developer under this Agreement, and/or (b) as provided for in the Letter of Credit. SECTION FOUR: Term of Letter of Credit. The Letter of Credit shall be for a term of no less than two (2) years and one (1) month from the date of issuance of the Certificate of Completion. Notwithstanding anything contained in Section 3 above, in the event the City has notified Developer of a Deficiency as provided above, then the term of this Agreement shall continue and the term of the Letter of Credit shall be extended until such Deficiency is corrected. If the City has provided a notice of Deficiency which has not been repaired, corrected and/or cured within thirty (30) days from the date the Letter of Credit (or any extension or replacement thereof) is scheduled to expire, then the City -4- ORLA_1688244.1 may draw on the Letter of Credit and establish a Cash Escrow for the performance of the Developer's obligations under this Agreement. SECTION FIVE: City's Use of Funds Drawn on Letter of Credit. Unless otherwise mutually agreed to by City and Developer, the funds available through the Letter of Credit and any Cash Escrow established under this Agreement shall be used by the City only (a) to repair, correct and/or cure any Deficiency, (b) to cure a breach by Developer of its obligations under this Agreement, and/or (c) to pay for reasonable administrative expenses and attorneys' fees and costs incurred by the City in exercising or otherwise enforcing its rights under this Agreement and Letter of Credit. If the Developer fails or refuses to undertake the repair, correction and/or cure of any Deficiency, then the City may, but shall not be obligated to, undertake such repair, correction and/or cure any Deficiency, the cost of which shall be paid for out of the Letter of Credit and any Cash Escrow established pursuant to this Agreement. In the event the City undertakes any such repair, correction and/or cure, then the City shall be entitled to retain an administrative fee in the amount of two percent (2 %) of the cost thereof and shall also be entitled to reimbursement of all 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 such corrective actions. SECTION SIX: Right of Entry for Corrective Activities. In the event the City undertakes to repair, correct and/or cure any Deficiency, then in such event the Developer hereby grants to the City and its employees, contractors and representatives, the right to enter upon the Property and the Improvements for the purpose of performing any such repair, correction, and/or cure. SECTION SEVEN: 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 Developer, or (ii) to undertake the repair, correction and/or cure of any Deficiency. Further, the City shall have no liability to the Developer or any third parties with respect to any corrective actions undertaken by the City. SECTION EIGHT: Excess Funds. In the event that the City draws on the Letter of Credit and establishes the Cash Escrow, then any excess funds shall be returned to the Developer after any and all of the Deficiencies have been repaired, corrected and cured to the satisfaction of the City and after the payment from the Cash Escrow of all obligations of the Developer under this Agreement. -5- ORLA_1688244.1 SECTION NINE: Continued Applicability of Subdivision Regulations. This Agreement shall not be construed to relieve or release Developer from any of its obligations under the City Subdivision Regulations with respect to the Improvements. SECTION TEN: Construction. This Agreement shall be construed in accordance with the laws of the State of Florida. IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed as of the date and year first above written. DEVELOPER: By: Print Name: Title: CITY: ATTEST: CITY OF OCOEE, FLORIDA, a Florida municipal corporation By: Beth Eikenberry, City Clerk By: S. Scott Vandergrift, Mayor (SEAL) FOR THE USE AND RELIANCE BY THE APPROVED BY THE OCOEE CITY CITY OF OCOEE ONLY. APPROVED COMMISSION AT A MEETING AS TO FORM AND LEGALITY HELD ON , 20 this day of UNDER AGENDA ITEM NO. , 20_. FOLEY & LARDNER LLP By: City Attorney -6- ORLA 1688244.1 EXHIBIT "A" (Legal Description of Real Property Constituting the Subdivision) -7- ORLA_1688244.1 EXIIIBIT `B" FORM OF LETTER OF CREDIT IRREVOCABLE STAND -BY LETTER OF CREDIT NUMBER SUBDIVISION NAME/PHASE: Applicant Beneficiary City of Ocoee [Insert Name and Address} 150 North Lakeshore Drive Ocoee, FL 34761 Issuing Bank ATTENTION: City Engineer [Insert Name and Address] 150 North Lakeshore Drive Ocoee, FL 34761 AMOUNT - $ Confirming Bank (if issuing WRITTEN DOLLAR AMOUNT AND Bank is not local [in Orange, 00 /100's US DOLLARS Osceola or Seminole County]) Bank Name DATE OF ISSUE Department Street Address City, State, Zip DATE OF EXPIRY We hereby establish our Irrevocable Standby Letter of Credit # , in favor of City of Ocoee, a Florida municipal corporation, and authorize you to draw on ( Insert Bank Name) (the "Bank "), at (Insert Bank Address — Orange, Osceola or Seminole County Only) by order of (Insert Name of Applicant) up to but not exceeding the aggregate amount of (Insert Written Amount) Dollars ($ ), in United States Funds, which is available by your draft at sight, when accompanied by this letter of credit and any one of the following documents: -8- ORLA_1688244.1 1. A statement purportedly signed by the Mayor, City Manager or authorized representative to the effect that the City is entitled to draw upon the Letter of Credit pursuant to the terms of that certain Maintenance, Materials and Workmanship Agreement between the City and Applicant with respect to the following Subdivision: ; or 2. A statement purportedly signed by the Mayor, City Manager or authorized representative to the effect that the performance of Applicant's obligation under the Maintenance, Materials and Workmanship Agreement has not been completed yet and the letter of credit will expire within 30 days from the date of the drawing without being extended or replaced to the City's satisfaction; or 3. A statement purportedly signed by the Mayor, City Manager or authorized representative to the effect that (Bank Name) has lost its designation as a "qualified public depository" pursuant to Florida Statutes, Chapter 280, and an acceptable replacement letter of credit has not been received; or 4. A statement purportedly signed by the Mayor, City Manager, or authorized representative, that the drawing is due to Applicant's failure to repair, correct and/or cure a "Deficiency" as that term is defined that certain Maintenance, Materials and Workmanship Agreement between the City and Applicant with respect to the following Subdivision: This letter of credit shall be deemed in force until , 20 , and will automatically be extended for a period not to exceed ninety (90) days without amendment unless we provide the City Manager of the City of Ocoee with written notice of our intent to terminate the credit herein extended, which notice must be provided at least thirty (30) days prior to the expiration date of the original term hereof or any renewed term. Drafts must bear the clause: "Drawn under Letter of Credit (Number) of (Bank Name), dated (Month, Day, Year)." This letter of credit shall remain in full force and effect notwithstanding a partial draw or draws so long as a sum remains to be drawn or until the letter of credit has expired. Except as otherwise specifically stated herein, this letter of credit sets forth in full the terms of our undertaking, and such undertaking shall not in any way be modified, amended, or amplified by reference to any document, instrument, or agreement referenced to herein or in which this letter of credit is referred to or this letter of credit relates, and any such reference shall not be deemed to incorporate herein by reference any document, instrument, or agreement. We hereby agree with the drawers, endorsers, and bona fide holders of all drafts drawn under and in compliance with the terms of this letter of credit, that such drafts will be duly honored upon presentation to the (Bank Name and Address - must be located in Orange, Seminole, or Osceola County). -9- ORLA_1688244.1 This letter of credit will be considered as canceled upon receipt by us or (Name of Confirming Bank, if applicable) of the original credit instrument or upon any present or future expiry date hereunder, whichever shall occur first. This letter of credit is subject to the "International Standby Practices (ISP98) ", International Chamber of Commerce Publication No. 590 and as to matters not governed by ISP98, shall be governed and construed in accordance with the provisions of Florida law. If a conflict between the "International Standby Practices (ISP98) ", and Florida law should arise, Florida law shall prevail. If a conflict between the law of another state or country and Florida law should arise, Florida law shall prevail. (SEAL) Authorized Signature (Typed Name) Title (President or Vice President of Bank is required to sign) -1 0- ORLA_1688244.1