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HomeMy WebLinkAboutItem #04 Approval of Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Escrow Agreement with October Holdings, LLC for Fountains at Tivoli Place - Phase 1OCQPP fIorida AGENDA ITEM COVER SHEET Meeting Date: July 1, 2014 Item # Contact Name: Contact Number: David A. Wheeler, P.E. 407 - 905 -3100, ext. 1504 Reviewed By: Department Director: City Manager: Subject: Two -Year Warranty Surety and Maintenance, Materials, and orkmanship Escrow Agreement with October Holdings, LLC for Fountains at Tivoli Place - Phase 1 (District 3 - Commissioner Johnson) Background Summary: October Holdings, LLC constructed the first phase of the Fountains at Tivoli Place commercial development at the same time they were building the Primrose School Daycare on lot 1 of the development. They have completed construction of the infrastructure improvements and the building and have requested a Certificate of Completion. The site infrastructure includes water and sanitary sewer improvements to be dedicated to the City as well as the stormwater collection system, access road, parking lot, and perimeter wall for the first phase of the commercial development. All identified punch list items 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. October Holdings, LLC has provided the City with a check in the amount of 10% of the constructed improvements that are being dedicated to the City by Bill of Sales. The attached Maintenance, Materials, and Workmanship Escrow Agreement (Form 8 from the Land Development Code) will act 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 October Holdings, LLC for the two -year warranty for the water and sanitary sewer facilities construction with the Fountains at Tivoli Place — Phase 1 and execute the Maintenance, Materials, and Workmanship Escrow Agreement with October Holdings, 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 October Holdings LLC. Attachments: Maintenance, Materials, and Workmanship Escrow Agreement with October Holdings 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 'V) Public Hearing Ordinance First Reading Ordinance Second Reading Resolution 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 Q For Clerk's Dept Use. Consent Agenda Public Hearing Regular Agenda N/A N/A N/A 2 MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT WITH CASH ESCROW (FOUNTAINS at TIVOLI PLACE — PHASE 1) THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT (this "Agreement ") is entered into this day of , 2014, by October Holdings LLC, a Florida Limited Liability Company, whose address is 860 Tomyn Boulevard, Ocoee, Florida 34761 (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 Fountains at Tivoli Place — Phase 1 (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 approval granted by the Ocoee City Commission on March 19, 2013: Fountains at Tivoli Place (Formerly Known as Fountains at Highlands Park — Phase 1; 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 Twenty -One Thousand, Two Hundred - Sixty -Three Dollars and 25/100 DOLLARS ($21,263.25) 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- mingled with other funds of the City. The Cash Escrow may only be drawn upon in accordance with the terms of this Agreement. 4835 - 3176 - 1677.1 UPDATED LDC FORM 8 (10/2011) SECTION TWO: 2 -Year Warrantv 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 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 -2- 4835- 3176 - 1677.1 Signed, sealed and delivered in the presence of: Pr' t Nam .\01^L C U�,Vl �-- Print Name Q �(fi T ATTEST: 7�:� LL4 DEVELOPER: OW >v- Poldi Lac A Florida m a " By: Print Name: AI J If'W L.1 Its: ct ` a k! e, Ide- CITY: CITY OF OCOEE, FLORIDA, a Florida municipal corporation Beth Eikenberry, City Clerk M. (SEAL) FOR THE USE AND RELIANCE BY THE CITY OF OCOEE ONLY. APPROVED AS TO FORM AND LEGALITY this day of ,20 SHUFFIELD LOWMAN & WILSON By: City Attorney By: S. Scott Vandergrift, Mayor APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 20 UNDER AGENDA ITEM NO. -4- 4835- 3176- 1677.1 EXHIBIT A A portion of the following described portion of land: That part of the Southwest 1/4 of the Northeast 1/4 of Section 30, Township 22 South, Range 28 east lying south of the right of way of the Florida State Turnpike, less the right of way of Tomyn Road, and less the lands vested in the Orlando /Orange County Expressway Authority by the Stipulated Order of Taking recorded in Official Records Book 5524, page 468, as refiled in Official Records Book 5543, page 4072, public records of Orange County, Florida. Together with the North 1/2 of that part of the abandoned right of way of Tomyn Road as described in the Resolution recorded in Official Records Book 9801, page 6875, public records of Orange County, Florida, which lies West of the East line of the Southwest 1/4 of the Northeast 1/4 of said Section 30.