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HomeMy WebLinkAboutItem #06 Two-Year Warranty Surety and Maintenance, Materials and Workmanship Escrow Agreement with Classic Smiles, LLC ,Are Center of Good L 0 AGENDA ITEM COVER SHEET Meeting Date: November 15, 2011 Item # (p Reviewed By: Contact Name: David A. Wheeler, P.E. Department Director: - Contact Number: 407 - 905 -3100, 3xt. 1505 City Manager: Subject: Two -Year Warranty Surety and Maintenance, Materials, and Workmanship Escrow Agreement with Classic Smiles, LLC (District 3 — Commissioner Johnson) Background Summary: Classic Smiles is a small scale commercial development located at 2679 Maguire Road, adjacent to the City's reuse pumping facility. The developer has completed construction of their building and related infrastructure improvements and has requested a Certificate of Completion. The infrastructure improvements that are being dedicated to the City are a gravity sanitary sewer, lift station, and fire hydrant. All identified punchlist repairs have been completed and the developer is ready to start the two -year warranty period. As a requirement of the Land Development Code, the developer is required to furnish the City a surety to cover any possible damages discovered during the next two years, should the developer not choose to make those repairs. Classic Smiles has provided the City with a check in the amount of 10% of the constructed improvements. The attached Maintenance, Materials, and Workmanship Escrow Agreement (Form 8 from the Land Development Code) acts as the executable document between the developer and the City in the event that the surety is monetary. The surety will be returned to the developer upon completion of the two -year warranty period and the repair of any damages caused over that two year period. Issue: Should the City accept the surety as provided by Classic Smiles, LLC for the two -year warranty and execute the Maintenance, Materials, and Workmanship Escrow Agreement with Classic Smiles, LLC. Recommendations The Engineering Department recommends the acceptance of the surety and the authorization of the Mayor and City Clerk to execute the Maintenance, Materials, and Workmanship Escrow Agreement with Classic Smiles, LLC. Attachments: Maintenance, Materials, and Workmanship Escrow Agreement with Classic Smiles, LLC Financial Impact: There are no financial impacts to the City in accepting this two -year warranty surety. Type of Item: (please mark with an "x) Public Hearing For Clerk's Dept Use: Ordinance First Reading X Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A Reviewed by 0 N/A 2 MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT WITH CASH ESCROW CLASSIC SMILES THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT (this "Agreement ") is entered into this day of , 2011, by CLASSIC SMILES, a L.L.C., whose address is 2679 Maguire Road, Ocoee, Florida (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 Classic Smiles (the "Subdivision ") and in connection therewith has installed with the approval of the City certain sanitary sewer and potable water systems and/or other improvements (collectively, the "Improvements ") under the provisions, conditions, and requirements of the City's Subdivision Regulations and the following Small Scale Site Plan approval granted by the Ocoee City Commission on November 16, 2010: titled Classic Smiles Dental Office; 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 providing the City with a cash escrow. NOW THEREFORE, the parties agree as follows: SECTION ONE: Establishment of Cash Escrow. Developer does hereby establish a cash escrow fund with the City in the amount of Four - thousand, eight - hundred seventy - one and 80/100 DOLLARS ($4,871.80) to guaranty the maintenance, materials, workmanship, and structural integrity of the Improvements and other obligations of the Developer under this Agreement (the "Cash Escrow "). The Cash Escrow shall be placed by the City in an account at a local financial institution and shall be disbursed only in accord with the terms of this Agreement. The Cash Escrow may be co- 4835- 3176- 1677.1 UPDATED LDC FORM 8 (10/2011) mingled with other funds of the City. The Cash Escrow may only be drawn upon in accordance with the terms of 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 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: Deficiency; City's Right to Draw on Cash Escrow. 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 Cash Escrow as set forth herein without further notice to Developer. Additionally, the City may draw on the Cash Escrow in such amounts as the City deems necessary or appropriate in the event of a default by Developer under this Agreement. SECTION FOUR: Term of Cash Escrow. The Cash Escrow shall be held by the City for a term of two (2) years 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 Cash Escrow shall be extended until such Deficiency is corrected. SECTION FIVE: City's Use of Cash Escrow. Unless otherwise mutually agreed to by City and Developer, the 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. 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 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 -2- 4835- 3176- 1677.1 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. Any excess funds held as the Cash Escrow shall be returned to the Developer (i) 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, or (ii) if no notice of Deficiency is provided to the Developer, the Cash Escrow shall be returned to the Developer within thirty (30) days following the end of the term of this Agreement. 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. -3 4835- 3176- 1677.1 IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed as of the date and year first above written. DEVELOPER: c/YyA BY: ,A.a[ gWr Print lame: „mil i 7 % C - Title: �rr1z_ 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 -4- 4835- 3176- 1677.1 EXHIBIT "A" (Legal Description of Real Property Constituting the Subdivision) .E6:41 12ZSCIrYPRON THE NORTH 100 FEET OF THE SOUTH 560 FELT OF THE EAST 330 i-ELT OF THE SOUTH'EAST 1/4 OF THE NORTHEAST 1/4 ( ESS THE EAST 40 FEET FOR ROAO RIGHT OF WAY) ALL IN SECTION 31, TOWNSHIP 22 SOUTH, RAI.,'OE 28 EAST, PUOI.IC RECOROS OF ORANGE COUNTY, FLORIDA. CONTAINS 29,000 SQUARE FELT OR 0.666 ACRES MO OR LESS, • -5- 4835-3176-1677.1