HomeMy WebLinkAboutItem #08 Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Agreement with Letter of Credit with Ocoee I, LLC for Westyn Bay Commercial ocoee
florida
AGENDA ITEM COVER SHEET
Meeting Date: July 19, 2016
Item #
Reviewed By:
Contact Name: Milen D. Womack, 4 i Department Director: �r Aft# ,Ww
Development Engineer
Contact Number: 407-554-7081 City Manager:
Subject: Two-Year Warranty Surety and Maintenance, Materials, and Workmansh greement
with Letter of Credit with Ocoee Partners I, LLC for Westyn Bay Commercial
Commission District#1 —John Grogan
Background Summary:
Westyn Bay Commercial is a four (4) lot commercial subdivision located on Ocoee-Apopka Road (County Road
437) and Ocoee Crown Point Parkway. The developer has completed construction of the infrastructure
improvements and has requested a Certificate of Completion. The infrastructure improvements include the
water, sanitary sewer, reuse utilities, streets and stormwater collection system, and the rear perimeter wall. 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, which
can be in the form of a Letter of Credit or Cash, to cover any possible damages discovered during the next two
years, should the developer choose not to make those repairs. Ocoee Partners I, LLC has provided the City
with a Letter of Credit in the amount of $25,360.64 which amounts to 10% of the constructed improvements.
The attached Maintenance, Materials, and Workmanship Agreement with Letter of Credit acts as the executable
document between the developer and the City. 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 Letter of Credit in the amount of $25,360.64 as provided by Ocoee Partners I, LLC
for the two-year warranty for Westyn Bay Commercial and execute the Maintenance, Materials, and
Workmanship Agreement with Letter of Credit with Ocoee Partners I, LLC?
Recommendations:
The Development Services Department recommends the acceptance of the Letter of Credit in the amount of
$25,360.64 and the execution of the Maintenance, Materials, and Workmanship Agreement with Letter of Credit
with Ocoee Partners I, LLC for the Westyn Bay Commercial Subdivision.
Attachments:
Maintenance, Materials, and Workmanship Agreement with Letter of Credit with Ocoee Partners I, 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
X 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
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MAINTENANCE, MATERIALS,AND
WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT
(SUBDIVISION NAME/PHASE: Westyn Bay Commercial)
THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT
(this "Agreement") is entered into this day of , 20_, by Ocoee
Partners I, LLC, a Florida Limited Liability Company (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 Westyn Bay Commercial (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 Commi sion on 5{0114:43(' IS, 245: [Insert Description of FSP or P/FSP, as
applicable] VrekvI tirua('N -Fi(Nett SaD&IN'15l'0r' t n ; 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 Florida Community Bank,N.A. (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 Twenty Five Thousand Three Hundred Sixty and 64/100 U.S. DOLLARS
($25,360.64) 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
ORLA_1688244.1
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
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
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ORLA_1688244.1
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.
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.
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ORLA_1688244.1
DEVELOPER: OcotE ?w 'NEC I , L.LC
By:
Print Name: al
Title: A,(6,4r,Ag
CITY:
ATTEST:
CITY OF OCOEE,FLORIDA, a Florida
municipal corporation
By:
Melanie Sibbitt,Acting City Clerk By:
Rusty Johnson, 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 .
By:
City Attorney
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ORLA_1688244.1
EXHIBIT"A"
Lots 1, 2, 3, and 4, of WESTYN BAY COMMERCIAL, according to the Plat thereof, as
recorded in Plat Book 88, Page 146-148, of the Public Records of Orange County, Florida.
I
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( \ ,.4.. . cB _,
, _,
FLORIDA COMMUNITY BANK
IRREVOCABLE STAND=BY LETTER OF CREDIT 1
.
DATE: JULY 7, 2016
NUMBER:-7200000120
)
SUBDIVISION NAME/PHASE: WESTYN BAY COMMERCIAL
APPLICANT -BENEFICIARY .
OCOEE PARTNERS I, LLC CITY OF-OCOEE
450 E. LAS OLAS BLVD. ; — 150 NORTH LAKESHORE DRIVE
SUITE 730 - .. OCOEE, FL 34761
FORT LAUDERDALE, FL 33301
ISSUING BANK ATTENTION
FLORIDA COMMUNITY BAN (; N.A. CITY ENGINEER
369-N. NEW YORK AVENUE' 150 NORTH LAKESHORE DRIVE
WINTER PARK, FL 32789 - OCOEE-, FL 34761
Confil)ming Bank (if issuing •- ` AMOUNT$25,380.64
( Bank is not local [in Orange, TWENTY FIVE THOUSAND THREE
Osceola or.Seminole County]) . HUNDRED SIXTY AND 64/100 U.S.:
Bank Name DOLLARS
Department
Street Address DATE OF ISSUE
' City, State, Zip 1 JULY 7, 2016
DATE OF EXPIRY
JULY 20, 2018
We1 hereby establish'our Irrevocable Standby.Letter of Credit #7200000120, in favor of City of
Ocoee, a Florida municipal corporation, and authorize you to draw on Florida Community Bank,
N.A. (the "Bank"), at 369 N. NeW York Avenue, Winter Park; FL 32789 by order of Ocoee
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Partners I, LLC up tobut not exceeding the aggregate amount of Twenty Five Thousand'Three
Hundred Sixty and. 64/1.00 Dollars ($25,360.64), in United States Funds, which is available by
ORLA 1688244.1 Irrevocable Letter of Credit 7200000120
Page 1 of 3
FLORIDA COMMUNITY-BANK
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 j
Workmanship.,Agreement..between the-City.and Applicant with respect to the
following Subdivision:-Westyn Bay Commercial; or
2. A statement purportedly signed by the Mayor, City Managerr br 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 Florida Community"Bank, N.A. has Post 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: Westyn Bay Commercial.
This letter of credit shall be deemed in force until July 20, 2018, 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 intentyto 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 7204900120 of Florida-Community
Bank, N.A.,dated/July 7, 2016."
This letter of credit shall remain in full force and effect notwithstanding a partial draw or draws
so long as asum remains to be drawn or until the letter of credit has expired. . .r,.
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 of this letter of credit relates, and-any such reference-shall not be
deemed to incorporate herein by reference anyldocument, instrument, or agreement:
ORLA_1688244.1 Irrevocable Letter of Credit 7200000120
Page2of3
_ 1
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FLORIDA COMMUNITY BANK
VVe 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 Florida Community Bank, N.A., 369 N.-New York Avenue, Winter
Pdrk, FL 32789.
This letter of credit will be considered as canceled upon receipt by us of the original credit
instrument or upon any present or future expiry date hereunder,.whichever shall occur first.
1
This letter of credit is subject to the "International Standby Practices (ISP98) International
Chamber of Commerce Publication iNo. 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. \-
FLORIDA COMMUNITY BANK, N.A.
t
B ��� Y/C7
By: ,
a' :eck, Vice President
l,`
J f
i
ORLA 1688244.1 Irrevocable Letter of Credit 7200000120
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