HomeMy WebLinkAbout10-21-14 Emergency Item - Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Escrow Agreement and Easement Agreement with Family Dollar Store of Florida, Inc. for the Family Dollar Store on Wurst RoadIkK �'/�
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fIorida
AGENDA ITEM COVER SHEET
Meeting Date
Item #
Contact Name: David A. Wheeler, P.E.
Contact Number: 407- 905 -3100, ext. 1504
October 21, 2014
Reviewed By. j
Department Director:
City Manager: /
Subject: Two -Year Warranty Surety and Maintenance, Materials, and Workmanship Escrow
Agreement and Easement Agreement with Family Dollar Stores of Florida, Inc. for the Family Dollar
Store on Wurst Road (District 1 — Commissioner Grogan)
Background Summary:
SB Ocoee FDS, LLC constructed the Family Dollar Store at 1403 Wurst Road. They have completed
construction of the infrastructure improvements and the building and have requested a Certificate of
Completion. The site infrastructure includes the installation of approximately 200 linear feet of 20 inch force
main in the Wurst Road right -of -way, a sanitary sewer lift station, and two 2 inch force mains to be dedicated to
the City as well as a right turn lane on Wurst Road. 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. Family Dollar of Florida, Inc. has provided the City with a Letter of Credit in the amount of 10% of the
constructed improvements that are being dedicated to the City by Bill of Sales. Family dollar of Florida, Inc. has
supplied the Letter of Credit and executed the Maintenance, Materials, and Workmanship Escrow Agreement
because upon receipt of a Certificate of Occupancy, SB Ocoee FDS, LLC will be selling the development to
Family Dollar of Florida, Inc., which they are planning to do before the end of this month.
The attached Maintenance, Materials, and Workmanship Escrow Agreement will act as the executable
document between the developer and the City in the event that the surety is a Letter of Credit. 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.
In addition, the City needs to obtain and easement over the eastern 10 feet of the Family Dollar property where
the new force mains have been installed as part of the lift station portion of this project. The easement will
allow the City to operate and maintain the force mains as required. An access easement was provided in the
Reciprocal Easement Agreement approved by the City Commission on March 18, 2014.
Issue:
Should the City accept the surety as provided by Family Dollar Store of Florida, Inc. for the two -year warranty
for the sanitary sewer facilities construction with the Family Dollar Store on Wurst Road and execute the
Maintenance, Materials, and Workmanship Escrow Agreement with Family dollar Store of Florida, Inc. and the
Easement Agreement.
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 Family Dollar
Store of Florida, Inc. The Utility and Engineering Departments recommend the acceptance and execution of
the Easement Agreement.
Attachments:
1) Maintenance, Materials, and Workmanship Escrow Agreement with the Family Dollar Store of Florida,
Inc.
Financial Impact:
There are no financial impacts to the City in accepting this two -year warranty surety.
Type of Item: (please mark with an `Y)
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
2
MAINTENANCE, MATERIALS, AND
WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT
(FAMILY DOLAR STOR #11164)
THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT
(this "Agreement ") is entered into this day of , 2014, by Family
Dollar Stores of Florida a Florida Coloration (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 Family Dollar Ocoee (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 granted by the Ocoee City Commission on
March 3 , 2014: 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 Wells Fargo 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:
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 Thirteen Thousand Four Hundred And Sixty -Three Dollars And Fifty -
Three Cents ( $ 13,463.53 ) 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.
ORLA_1688244.1
SECTION TWO: 2 -Year W arranty 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 Riaht 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 (3 0) days from the date the
Letter of Credit (or any extension or replacement thereof) is scheduled to expire, then the City
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.
-2-
ORLA_1688244.1
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: Rij4ht 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.
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.
-3-
ORLA_1688244.1
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.
ATTEST:
Beth Eikenberry, City Clerk
BY:
(SEAL)
FOR THE USE AND RELIANCE BY THE
CITY OF OCOEE ONLY. APPROVED
AS TO FORM AND LEGALITY
this day of
.20
City Attorney
FAMILY DOLLAR STORES OF FLORIDA, INC.
Pint N er'
Title.: , e ef id -e,
CITY:
CITY OF OCOEE, FLORIDA, a Florida
municipal corporation
BY:
S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON , 20_
UNDER AGENDA ITEM NO.
-4-
ORLA_1688244.1
"Exhibit A"
FEE PARCEL 1:
THAT PART OF THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4 OF SECTION 9, TOWNSHIP 22 SOUTH,
RANGE 28 EAST, ORANGE COUNTY, FLORIDA, LYING SOUTH AND WEST OF THE COUNTY ROAD AND
NORTH OF THE ATLANTIC COAST LINE RAILROAD, LESS THE EAST 400 FEET THEREOF.
ALSO DESCRIBED AS:
COMMENCE AT THE SOUTHWEST CORNER OF SECTION 9, TOWNSHIP 22 SOUTH, RANGE 28 EAST,
ORANGE COUNTY, FLORIDA; THENCE RUN N.00 °17'55 "W. ALONG THE WEST LINE OF THE SOUTHWEST
1/4 OF SAID SECTION 9, 1335.38 FEET TO THE SOUTHWEST CORNER OF THE NORTHWEST 1/4 OF THE
SOUTHWEST 1/4 OF SAID SECTION 9 AND THE POINT OF BEGINNING; THENCE CONTINUE N.00 ° 17'55 "W.
ALONG SAID WEST LINE 355.30 FEET TO A POINT ON THE SOUTHERLY RIGHT -OF -WAY FOR WURST
ROAD; THENCE RUN 5.63 °08'08 "E. ALONG SAID SOUTHERLY RIGHT -OF -WAY 183.30 FEET; THENCE
LEAVING SAID SOUTHERLY RIGHT -OF -WAY RUN 5.00 °20'08 "E., 272.52 FEET; THENCE RUN
N.89 °58'55 "W., 163.26 FEET TO THE POINT OF BEGINNING.
EASEMENT PARCEL 1:
TOGETHER WITH EASEMENTS CREATED BY, AND SUBJECT TO, THAT CERTAIN RECIPROCAL EASEMENT
AGREEMENT RECORDED IN OFFICIAL RECORDS BOOK 10727, PAGE 2454, PUBLIC RECORDS OF ORANGE
COUNTY, FLORIDA, IN, ON, OVER UNDER AND UPON THE FOLLOWING DESCRIBED PARCELS;
DRAINAGE EASEMENT
COMMENCE AT THE SOUTHWEST CORNER OF SECTION 9, TOWNSHIP 22 SOUTH, RANGE 28 EAST,
ORANGE COUNTY, FLORIDA; THENCE RUN N.00 °17'55 "W. ALONG THE WEST LINE OF THE SOUTHWEST
1/4 OF SAID SECTION 9, 1103.62 FEET TO A POINT ON THE NORTHERLY RIGHT -OF -WAY FOR THE
SEABOARD COAST LINE RAILROAD AND THE POINT OF BEGINNING; THENCE CONTINUE N.00 °17'55 "W.,
231.76 FEET TO THE SOUTHWEST CORNER OF THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4 OF SAID
SECTION 9; THENCE RUN 5.89 °58'55 "E. ALONG SOUTH LINE OF THE NORTHWEST 1/4 OF THE
SOUTHWEST 1/4 OF SAID SECTION 9,426.84 FEET TO A POINT ON THE SAID NORTHERLY RIGHT -OF -WAY
LINE FOR THE SEABOARD COAST LINE RAILROAD SAID POINT LYING ON A CURVE CONCAVE SOUTHERLY,
HAVING A RADIUS OF 4906.09 FEET, A CHORD BEARING OF 5.62 °01'58 "W, A CHORD DISTANCE OF 39.06
FEET, THENCE RUN SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 00 °27'22"
AN ARC DISTANCE OF 39.06 FEET TO THE END OF SAID CURVE; THENCE RUN 5.61 °23'25 "W. ALONG SAID
NORTHERLY RIGHT OF WAY OF THE ATLANTIC COASTLINE RAILROAD, 445.45 FEET TO THE POINT OF
BEGINNING.
WON Fargo Bank, N.A.
U.S. Trade Services
Standby Letters (of Credit
401 Linden Street, ist Floor
MAC D4004
Winston - &dean, NC; 27101
Phone : 1(800) 776 -3862 Option 2
E -Mail: sblc- ne.w(a•wellsfal;go.com
Irrevocable Standby Letter Of Credit
Number: IS0252439U
Issue Date : October 14, 2014
BENEFICIARY APPLICANT
CITY OF OCOEE FAMILY DOLLAR STORES OF FLORIDA.,INC
150 NORTH LAKESHORE DRIVE C/O REAL ESTATE LEGAL DEPARTMENT
OCOEE, FLORIDA 34761 P 0 BOX 1017
CHARLOTTE, NORTH CAROLINA 28201 -1017
LETTER OF CREDIT ISSUE AMOUNT USD 13,463.53 EXPIRY DATE OCTOBER 14, 2015
LADIES AND GENTLEMEN:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT IS0252439U IN FAVOR OF CITY OF
OCOEE, A FLORIDA MUNICIPAL CORPORATION, AND AUTHORIZE YOU TO DRAW ON WELLS FARGO BANK,
NA(THE "BANK "), AT 401 LINDEN STREET, 1 ST FLOOR, WINSTON SALEM, NC 27101, BY ORDER OF FAMILY
DOLLAR STORES OF FLORIDA, INC. UP TO BUT NOT EXCEEDING THE AGGREGATE AMOUNT OF THIRTEEN
THOUSAND FOUR HUNDRED SIXTY THREE AND 53/100 UNITED STATES DOLLARS ($13,463.53), WHICH IS
AVAILABLE BY YOUR DRAFT AT SIGHT, WHEN ACCOMPANIED BY THIS LETTER OF CREDIT AND ANY ONE OF
THE FOLLOWING DOCUMENTS:
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:(INSERT NAME OF 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 WELLS FARGO BANK, NA, 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
Together we' go far
Page 1 of 3
Each page of this document is an integral part
of this Irrevocable Standby Letter of Credit Number IS0252439U
W R� KMANSHIP AGREEMENT BETWEEN THE CITY AND APPLICANT WITH RESPECT TO THE FOLLOWING
SUBDIVISION:(INSERT NAME OF SUBDIVISION).
THIS LETTER OF CREDIT SHALL BE DEEMED IN FORCE UNTIL OCTOBER 14, 2015 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 NOT TO
EXTEND THE CREDIT HEREIN, 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 IS0252439U OF WELLS FARGO BANK,
NA, DATED 10/14/14."
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 ILETTER 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 BENEFICIARY 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
WELLS FARGO BANK, NA, 401 LINDEN STREET, 1 ST FLOOR, WINSTON SALEM, NC 27101.
DRAWINGS MAY ALSO BE PRESENTED TO US BY FACSIMILE TRANSMISSION TO FACSIMILE NUMBER
336 -735 -0952 (EACH SUCH DRAWING, A "FAX DRAWING "); PROVIDED, HOWEVER, THAT A FAX DRAWING
WILL NOT BE EFFECTIVELY PRESENTED UNTIL YOU CONFIRM BY TELEPHONE OUR RECEIPT OF SUCH FAX
DRAWING BY CALLING US AT TELEPHONE NUMBER 1- 800 - 776 -3862. IF YOU PRESENT A FAX DRAWING
UNDER THIS LETTER OF CREDIT YOU DO NOT NEED TO PRESENT THE ORIGINAL OF ANY DRAWING
DOCUMENTS, AND IF WE RECEIVE ANY SUCH ORIGINAL DRAWING DOCUMENTS THEY WILL NOT BE
EXAMINED BY US. IN THE EVENT OF A FULL OR FINAL DRAWING THE ORIGINAL STANDBY LETTER OF CREDIT
MUST BE RETURNED TO US BY OVERNIGHT COURIER.
THIS LETTER OF CREDIT WILL BE CONSIDERED AS CANCELED UPON RECEIPT OF THE ORIGINAL CREDIT
INSTRUMENT, ANY AMENDMENTS AND SIGNED CONSENT OF THE BENEFICIARY QUOTING OUR REFERENCE.
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 (1 SP98) ", 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.
Together we'll go far
Page 2of3
Each page of this multipage document is an integral part
of this Irrevocable Standby Letter of Credit Number IS0252439U
Very Truly Yours,
WELLS FAR�Q`[3ANK, N.A.
By:
, l Authorized Signature
The original of the Letter of Credit contains an embossed seal over the Authorized Signature.
Please direct any written correspondence or inquiries regarding this Letter of Credit, always quoting our
reference number, to Wells Fargo Bank, National Association, Attn: U.S. Standby Trade Services
at either 794 Davis Street, 2nd Floor
MAC A0283 -023,
San Leandro, CA 94577 -6922
or 401 Linden Street, 1st Floor
MAC D4004 -017,
Winston - Salem, NC 27101
Phone inquiries regarding this credit should be directed to our Standby Customer Connection Professionals
1- 800 - 798 -2815 Option 1 1- 800 - 776 -3862 Option 2
(Hours of Operation: 8:00 a.m. PT to 5:00 p.m. PT) (Hours of Operation: 8:00 a.m. EST to 5:30 p.m. EST)
Together we'll go far
Page 3 of 3 -, qw .=&
Each page of this multipage document is an integral part - -
ofthis Irrevocable Standby Letter of Credit Number IS0252439U
WELLS
FARGO
We1Ls Fargo Bank, N.A.
U.S. Trade Services
Standhv Letters of Credit
401 Linden Street, ist Floor
MAC, I)4004 -017,
Winston- Salem, NC; 27101
Phone: 1(800) 776 -3862 Option 2
E -Mail: shle- new@ivellsfargo.com
Amendment To
Irrevocable Standby Letter Of Credit
Number: IS0252439U
Amendment Number: 001
Amend Date : October 20, 2014
BENEFICIARY . APPLICANT .
CITY OF OCOEE
150 NORTH LAKESHORE DRIVE
OCOEE, FLORIDA 34761
LADIES AND GENTLEMEN:
FAMILY DOLLAR STORES OF FLORIDA,INC
C/O REAL ESTATE LEGAL DEPARTMENT
P0 BOX 1017
CHARLOTTE, NORTH CAROLINA 28201 -1017
AT THE REQUEST AND FORTH E ACCOUNT OF THE ABOVE REFERENCED APPLICANT, WE HEREBY AMEND OUR IRREVOCABLE
STANDBY LETTER OF CREDIT (THE "WELLS CREDIT') IN YOUR FAVOR AS FOLLOWS:
- PARAGRAPH READING:
THIS LETTER OF CREDIT SHALL BE DEEMED IN FORCE UNTIL OCTOBER 14, 2015 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 NOT TO EXTEND THE CREDIT HEREIN, WHICH NOTICE MUST BE PROVIDED AT LEAST
THIRTY (30) DAYS PRIOR TO THE EXPIRATION DATE OF THE ORIGINAL TERM HEREOF OR ANY RENEWED
TERM.
NOW AMENDED TO READ:
THIS LETTER OF CREDIT SHALL BE DEEMED IN FORCE UNTIL OCTOBER 14, 2016 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 NOT TO EXTEND THE CREDIT HEREIN, WHICH NOTICE MUST BE PROVIDED AT LEAST
THIRTY (30) DAYS PRIOR TO THE EXPIRATION DATE OF THE ORIGINAL TERM HEREOF OR ANY RENEWED
TERM.
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED,
THIS AMENDMENT IS TO BE ATTACHED TO THE ORIGINAL WELLS CREDIT AND IS AN INTEGRAL PARTTHEREOF.
Together we'll go far
1606
Page 1 of 2
Each page of this document is an integral part
of this Irrevocable Standby Letter of Credit Number IS0252439U , Amendment Number 001
s
�i �
Very Truly Yours,
WELLS FARGO BA N.A. �-
By:
Authorized Signature
The original of the Letter of Credit contains an embossed seal over the Authorized Signature.
Please direct any written correspondence or inquiries regarding this Letter of Credit, always quoting our
reference number, to Wells Fargo Bank, National Association, Attn: U.S. Standby Trade Services
at either 794 Davis Street, 2nd Floor
MAC A0283 -023,
San Leandro, CA 94577 -6922
or 401 Linden Street, 1 st Floor
MAC D4004 -017,
Winston - Salem, NC 27101
Phone inquiries regarding this credit should be directed to our Standby Customer Connection Professionals
1- 800 - 798 -2815 Option 1 1- 800 - 776 -3862 Option 2
(Hours of Operation: 8:00 a.m. PT to 5:00 p.m. PT) (Hours of Operation: 8:00 a.m. EST to 5:30 p.m. EST)
Together we'll go far
Page 2of2
Each page of this multipage document is an integral part
of this Irrevocable Standby Letter of Credit Number 150252439U , Amendment Number 001
THIS INSTRUMENT PREPARED BY
AND RETURN TO:
Vicki L. Berman, Esquire
DEAN, MEAD, EGERTON, BLOODWORTH,
CAPOUANO & BOZARTH, P.A.
Post Office Box 2346
Orlando, Florida 32803 -2346
(407) 428 -5135
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (this "Agreement ") is made effective as of the
day of , 2014 by and between SB OCOEE FDS, LLC, a Florida
limited liability company, whose address is 823 Irma Avenue, Orlando, Florida 32803
( "First Party "), and THE CITY OF OCOEE, FLORIDA, a Florida municipal corporation,
whose address is 150 N. Lakeshore Drive, Ocoee, Florida 34761 ( "Second Party ").
RECITALS:
WHEREAS, First Party is the owner of a tract of real property located in the City
of Ocoee, Orange County, Florida, more particularly described on Exhibit A attached
hereto and incorporated by reference (the "First Party Tract "), and intends to develop the
First Party Tract to be used for retail purposes; and
WHEREAS, Second Party owns a tract of real property adjacent to and lying next
to the First Party Tract, also located in The City of Ocoee, Orange County, Florida, more
particularly described on Exhibit B attached hereto and incorporated herein by reference
(the "Second Party Tract "), which Second Party Tract is vacant and undeveloped; and
WHEREAS, First Party desire to grant to Second Party a non - exclusive easement
for the sole purpose of construction and installation of underground sanitary sewer lines
and equipment in accordance with the provisions hereof.
NOW, THEREFORE, in consideration of the above premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
1. Grant of Utility Easement by First Party First Party hereby grants and
creates for the benefit of Second Party a perpetual, non - exclusive easement under and
across the East 10 feet of the First Party Tract which easement shall be for use by Second
Party for the installation, maintenance, repair and replacement of sanitary sewer utility
facilities; provided that (i) the rights granted pursuant to such easement shall at all times
be exercised in such a manner as not to interfere materially with the normal operation of
the First Party Tract and any business conducted therein, and (ii) except in an emergency,
01108836.1 9/16/2014
the right of Second Party to enter upon the First Party Tract for the exercise of any right
pursuant to such easement shall be conditioned upon providing reasonably prior advance
written notice to the First Party as to the time and manner of entry. All lines, systems and
structures shall be installed and maintained below the ground level or surface of the First
Party Tract (except for such parts thereof that cannot and are not intended to be placed
below the surface, which shall be placed in such location as approved in writing by the
First Party). Said easement shall hereinafter be referred to as the "Second Party Utility
Easement'. Second Party hereby agrees to use and enjoy the easement rights granted by
this instrument with due regard for the rights of First Party to use and enjoy its parcel.
2. Covenants Running with the Land The easement granted by First Party
hereunder shall run with the land and shall bind and benefit, as applicable, the parties
hereto and their respective successors and assigns.
3. Condemnation Nothing in this Agreement shall be construed to give one
party any interest in any award or payment made to the other party in connection with
any exercise of eminent domain or transfer in lieu thereof affecting the other party's rights
or giving the public or any government any rights. The parties may file collateral claims
with the condemning authority for their losses that are separate and apart from the value
of the land area and improvements taken.
4. Indemnification Each party shall and does hereby, indemnify and hold the
other party, its legal representatives, lessees, tenants, employees, successors and assigns
(all of whom shall be collectively referred to as the "Indemnitees ") harmless of, from and
against any and all loss, cost, expense, suits, judgments and liabilities for damages or
injuries, of whatsoever kind, whether to persons or property, arising in any way by any
reason of the use by the indemnifying party of the easement herein granted and /or any
construction activities of Second Party hereunder; provided, however, that said indemnity
and hold harmless shall exclude any and all loss, cost, expense, suits, judgments and
liabilities for damages or injuries, of whatsoever kind, whether to persons or property,
caused by negligence of "Indemnitees," or any other person acting under their direction
or contract with them, or other third parties. Nothing set forth in this Agreement shall be
deemed or construed as a waiver of sovereign immunity by the Second Party and the
Second Party shall have and maintain at all times and for all purposes any and all rights,
immunities and protections available under controlling legal precedent and as provided
under Section 768.28, Florida Statutes and other applicable law. This indemnification
and hold harmless shall survive any termination of this Agreement.
5. Permittees As used herein, the term " Permittees" shall mean each party
hereto, and their successors in title, and each of their respective tenants, employees,
contractors, guests and invitees.
(Signature/Notary pages attached)
01108836.1 9/16/2014
2
IN WITNESS THEREOF, the parties have executed this Agreement as of the day
and year first above written.
WITNESSES AS TO FIRST PARTY
Signed:
Print Name: t
1t
Signed: t
r '
Print Name:
FIRST PARTY:
SB OCOEE FDS, LLC, a Florida limited
liability company
( �, C
Print Name: "4,-
Title:
Dated:
STATE OF F �-c V- 1 DA
COUNTY OF O (2,,kK) -6 E-
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing
instrument was acknowledged before me by (lnV i 5 the
Vk C 1 - , of SB OCOEE FDS, LLC, a Florida limited liability company,
freely an voluntarily under authority duly vested in him by said company. e� she is
personally known to me or has produced as identification.
WITNESS my hand and official seal in the County and State last aforesaid this 20 +1-%
day of Oc,4D be 2014.
n(ajtq��
Notary Public v w �
Typed, printed or stamped name of Notary Public
My Commission Expires: S C7 201 e)
HILLARY HEPP
MY COMMISSION #FF149465
EXPIRES August 10, 2018
(407) 398 -0153 FloridahlotaryService.com
01108836.1 9/16/2014
WITNESSES AS TO SECOND
PARTY:
Signed:
Print Name:
Signed:
Print Name:
SECOND PARTY:
CITY OF OCOEE, FLORIDA
By:
Print Name
Title:
Dated:
ATTEST:
By:
Print Name
Title:
Beth Eikenberry
City Clerk
(SEAL)
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
and County aforesaid to take acknowledgements, personally appeared S. SCOTT
VANDERGRIFT and BETH EIKENBERRY, personally known to me to be the Mayor
and City Clerk, respectively, of the CITY OF OCOEE and that they severally
acknowledged executing the same in the presence of two subscribing witnesses freely
and voluntarily under authority duly vested in them by said municipality. They are
personally known to me.
WITNESS my hand and official seal in the County and State last aforesaid this day
of 2014.
Signature of Notary
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal):_
My Commission Expires (if not legible on seal):
S. Scott Vandergrift
Mayor
01108836.1 9/16/2014
4
EXHIBIT A
Legal Description of First Party Tract
COMMENCE AT THE SOUTHWEST CORNER OF SECTION 9, TOWNSHIP 22,
RANGE 28 EAST, ORANGE COUNTY, FLORIDA; THENCE RUN N.00 °17'55 "W.
ALONG THE WEST LINE OF THE SOUTHWEST'/4 OF SAID SECTION 9, 1335.38
FEET TO THE SOUTHWEST CORNER OF THE NORTHWEST/ 40F THE
SOUTHWEST SAID SECTION 9 AND THE POINT OF BEGINNING; THENCE
CONTINUEN.00 0 17'55 "W. ALONG SAID WEST LINE 355.30 FEET TO A POINT
ON THE SOUTHERLY RIGHT -OF -WAY FOR WURST ROAD; THENCE RUN
S.63 0 08'08 "E ALONG SAID SOUTHERLY RIGHT -OF -WAY 183.30 FEET; THENCE
LEAVING SAID SOUTHERLY RIGHT -OF -WAY RUN S.00 0 20'08 "E., 272.52 FEET;
THENCE RUN N.89 0 58'55 "W., 163.26 FEET TO THE POINT OF BEGINNING, SAID
PARCEL CONTAINS 1.17 ACRES+
01108836.1 9/16/2014
EXHIBIT B
Second Party Tract
COMMENCE AT THE SOUTHWEST CORNER OF SECTION 9, TOWNSHIP 22
SOUTH, RANGE 28 EAST, ORANGE COUNTY, FLORIDA; THENCE RUN
N.00 0 17'55 "W. ALONG THE WEST LINE OF TIIE SOUTHWEST/ 40F SAID
SECTION 9, 1103.62 FEET TO A POINT ON THE NORTHERLY RIGHT -OF -WAY
FOR THE SEABOARD COAST LINE RAILROAD AND THE POINT OF
BEGINNING; THENCE CONTINUE N.00 °17'55 "W., 231.65 FEET TO THE
SOUTHWEST CORNER OF THE NORTHWEST/ 40F THE SOUTHWEST/ 40F
SAID SECTION 9; THENCE RUN S.89 °58'55 "E. ALONG SOUTH LINE OF THE
NORTHWEST THE SOUTHWEST/40F SAID SECTION 9, 263.51 FEET TO A
POINT ON THE SAID NORTHERLY RIGHT -OF -WAY LINE FOR THE SEABOARD
COAST LINE RAILROAD SAID POINT LYING ON A CURVE CONCAVE
SOUTHERLY, HAVING A RADIUS OF 4906.09 FEET, A CHORD BEARING OF
S.62 0 01'58 "W, A CHORD DISTANCE OF 39.06 FEET, THENCE RUN
SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
00 0 27'22" AN ARC DISTANCE OF 39.06 FEET TO THE END OF SAID CURVE;
THENCE RUN S.61 0 23'25 "W. ALONG SAID NORTHERLY RIGHT -OF -WAY OF
THE ATLANTIC COASTLINE RAILROAD, 445.45 FEET TO THE POINT OF
BEGINNING, SAID PARCEL CONTAINS 1.13 ACRES+
01108836.1 9/16/2014
6