HomeMy WebLinkAboutItem #03 Approval of Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Escrow Agreement with Colonial Bluford, LLC for Ocoee Town Centerlk4
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AGENDA ITEM COVER SHEET
Meeting Date: August 6, 2013
Item #
Contact Name:
Contact Number:
David A. Wheeler. P.E.
407 - 905 -3100, ext. 1504
Reviewed By:
Department Director:
h
City Manager:
Subject: Two -Year Warranty Surety and Maintenance, Materials, and Workmanship Escrow
Agreement with Colonial Bluford, LLC for Ocoee Town Center (District 3 — Commissioner Johnson)
Background Summary:
Ocoee Town Center is a 36.08 acre commercial development located at the northwest corner of West Colonial
Drive (SR 50) and Bluford Avenue. Phase 1 of the development includes four lots on 8.60 acres of the
property, with the Race Trac facility on lot #1. The developer has completed construction of the infrastructure
improvements for phase 1 and has requested a Certificate of Completion. The infrastructure improvements
include the water, sanitary sewer, and reuse utilities, the streets and stormwater collection system, and the
perimeter wall. All identified punch list 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. Colonial Bluford LLC has provided the City with a Letter of Credit 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 for
that surety. 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 Colonial Bluford, LLC for the two -year warranty for Ocoee
Town Center phase 1 and execute the Maintenance, Materials, and Workmanship Escrow Agreement with
Colonial Bluford, 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 Colonial Bluford,
LLC.
Attachments:
Maintenance, Materials, and Workmanship Escrow Agreement with Colonial Bluford, 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 z')
Public Hearing
For Clerk's Dept Use:
Ordinance First Reading
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
Reviewed by Finance Dept.
Reviewed by ()
N/A
N/A
N/A
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MAINTENANCE, MATERIALS, AND
WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT
(SUBDIVISION NAME / PHASE: Ocoee Town Center Phase I)
THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT
(this "Agreement ") is entered into this day of , 20, by Colonial
Bluford LLC, a Florida limited liability company, whose address is 4801 PGA Boulevard, Palm
Beach Gardens, Florida 33418 (the "Developer ") and the CITY OF OCOEE, a Florida
municipal corporation, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (the
,vi 7).
WITNESSETH:
WHEREAS, Developer, or its predecessor -in- interest or its predecessor -in title, has
developed and/or constructed a subdivision known as Ocoee Town Center (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
December 2, 2011, 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 Regions Bank (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:
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 NINETY THOUSAND SEVEN HUNDRED NINETY -FIVE 31/100
DOLLARS ($90,795.31) 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
ORLA_1688244.1
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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.
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ORLA_1688244.1
SECTION NINE: Continued Applicability of Subdivision Regulations
Bv:
This Agreement shall not be construed to relieve or release Developer from any of its
oblivations under the City Subdivision Regulations with respect to the Improvements.
SECTION TEN: Construction.
Fhis 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:
Colonial Bluford LLC, a Florida limited
liability company
By: Ram Realty Associates 11 LLC, a Delaware
limited liability company, as Manager
Karen D. Ge ler Vice President
Bv:
James- ne, D`ii✓ resident
CITY:
ATTEST:
Beth Eikenberry, City Clerk
CITY OF OCOEI:, FLORIDA, a Florida
municipal corporation
By:
S. Scott Vandergrift, Mayor
(SEAT.)
FOR THE USE AND RELIANCE BY THE
CITY OF OCOEE ONLY. APPROVED
AS TO FORM AND LEGALITY
this day of
.20
APPROVED BY TI IL; OCOEE CITY
COMMISSION AT A MEETING
I-II ELD ON 1 20
UNDER AGENDA ITEM NO.
SHUFFIELD, LOWMAN & WILSON P.A.
By:
City Attorney
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ORLA_1688244.1
EXHIBIT "A"
(Legal Description of Real Property Constituting the Subdivision)
COMMENCE AT THE SOUTHWEST CORNER OF THE SOUTHWEST 1/4 OF SECTION
20, TOWNSHIP 22 SOUTH, RANGE 28 EAST, ORANGE COUNTY, FLORIDA; RUN
THENCE N00 0 29'27 "W ALONG THE WEST LINE OF SAID SOUTHWEST 1/4 A
DISTANCE OF 1383.17 FEET TO THE SOUTHWEST CORNER OF THE SOUTH 1/2 OF
THE NORTHWEST 1/4 OF SOUTHWEST 1/4 SAID SECTION 20; THENCE S89 °40'52 "E
ALONG THE SOUTH LINE OF THE SOUTH 1/2 OF THE NORTHWEST 1/4 OF THE
SOUTHWEST 1/4 OF SAID SECTION 20, A DISTANCE OF 290.99 FEET TO A POINT ON
THE EASTERLY RIGHT -OF -WAY LINE OF SOUTH BLUFORD AVENUE; THENCE RUN
THE FOLLOWING THREE (3) COURSES ALONG SAID EASTERLY RIGHT -OF -WAY
LINE: (1) S36 °02'16 "E A DISTANCE OF 544.73 FEET TO A POINT ON A CURVE
CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 5735.72 FEET, A CHORD
BEARING OF S38 0 04'12 "E, A CHORD DISTANCE OF 397.65 FEET, (2) SOUTHEASTERLY
ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 03 °58'23 ", A
DISTANCE OF 397.73 FEET; (3) S40 °03'24 "E A DISTANCE OF 12.32 FEET FOR A POINT
OF BEGINNING; THENCE N49 °56'36 "E A DISTANCE OF 295.32 FEET TO A POINT OF
CURVATURE ON A CURVE CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF
197.50 FEET, A CHORD BEARING OF N52 °08'52 "E, A CHORD DISTANCE OF 15.19
FEET, RUN THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE,
THROUGH A CENTRAL ANGLE OF 04 A DISTANCE OF 15.20 FEET; THENCE
S40 0 03'24 "E A DISTANCE OF 70.32 FEET TO A POINT ON A CURVE CONCAVE
SOUTHEASTERLY, HAVING A RADIUS OF 127.50 FEET, A CHORD BEARING OF
N73 0 25'03 "E, A CHORD DISTANCE OF 73.00 FEET, RUN THENCE NORTHEASTERLY
ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 33 °16'15 ", A
DISTANCE OF 74.04 FEET; THENCE S89 °56'50 "E A DISTANCE OF 127.60 FEET;
THENCE S00 0 03'10 "W A DISTANCE OF 149.06 FEET; THENCE S49 °56'36 "W A
DISTANCE OF 68.52 FEET; THENCE S40 °03'24 "E A DISTANCE OF 159.85 FEET TO A
POINT OF CURVATURE ON A CURVE CONCAVE NORTHEASTERLY, HAVING A
RADIUS OF 121.50 FEET, A CHORD BEARING OF S65 °07'29 "E, A CHORD DISTANCE
OF 102.96 FEET, RUN THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE,
THROUGH A CENTRAL ANGLE OF 50 0 08'10 ", A DISTANCE OF 106.32 FEET; THENCE
N89 0 48'26 "E A DISTANCE OF 263.33 FEET; THENCE N00 °1 1'34 "W A DISTANCE OF
392.55 FEET; THENCE S89 0 56'50 "E A DISTANCE OF 914.06 FEET TO A POINT ON THE
EAST LINE OF THE SOUTHWEST 1/4 OF SAID SECTION 20; THENCE S00 0 32'52 "E
ALONG SAID EAST LINE, A DISTANCE OF 734.65 FEET TO A POINT ON THE NORTH
RIGHT -OF -WAY LINE OF WEST COLONIAL DRIVE; THENCE RUN THE FOLLOWING
FOUR (4) COURSES ALONG SAID NORTH RIGHT -OF -WAY LINE; (1) S89 °48'26 "W A
DISTANCE OF 778.90 FEET; (2) N00 0 11'34 "W A DISTANCE OF 10.00 FEET; (3)
S89 0 48'26 "W A DISTANCE OF 570.21 FEET; (4) N65 °07'06 "W A DISTANCE OF 24.65
FEET TO A POINT ON SAID EASTERLY RIGHT -OF -WAY LINE OF SOUTH BLUFORD
AVENUE; THENCE N40 °03'24 "W ALONG SAID EASTERLY RIGHT -OF -WAY LINE, A
DISTANCE OF 677.72 FEET TO THE POINT OF BEGINNING.
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ORLA_1688244.1
I_ *: 1 91 M :
FORM OF LETTER OF CREDIT
IRREVOCABLE STAND -BY LETTER OF CREDIT
NUMBER
SUBDIVISION NAME /PHASE:
Applicant
[Insert Name and Address}
Issuing Bank
[Insert Name and Address]
Confirming Bank (if issuing
Bank is not local [in Orange,
Osceola or Seminole County])
Bank Name
Department
Street Address
City, State, Zip
Beneficiary
City of Ocoee
150 North Lakeshore Drive
Ocoee, FL 34761
ATTENTION:
City Engineer
150 North Lakeshore Drive
Ocoee, FL 34761
AMOUNT - $
WRITTEN DOLLAR AMOUNT AND
00 /100's US DOLLARS
DATE OF ISSUE
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:
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ORLA_1688244.1
I . 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).
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ORLA_1688244.1
This letter of credit will be considered as canceled upon receipt by us or ( Name of Con arming
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)
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ORLA_1688244.1