HomeMy WebLinkAboutItem #06 Approval of a Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Agreement with Letter of Credit with BCI IV Park 429 Logistics Center LLC for The Park at 429, Lot 3 ocoee
florida
AGENDA ITEM COVER SHEET
Meeting Date: September 18, 2018
Item # 6
�pW Reviewed By:
Contact Name: Milen D. Womack, Department Director:
Development Engineer
Contact Number: 407-554-7081 City Manager:
Subject: Approval of a Two-Year Warranty Surety and Maintenance, Materials, nd Workmanship
Agreement with Letter of Credit with BCI IV Park 429 Logistics Center LLC,for The Park at 429
Lot 3
Commission District#3— Richard Firstner
BACKGROUND:
The Park at 429, Lot 3, is a part of the overall Park at 429 Industrial Park located at 639 East Crown Point Road.
The overall parcel is 45.54 acres in size, while Lot 3 makes up 25.1 acres of the overall development. Lot 3
consists of two light industrial use buildings that are 195,144 SF, and 245,973 SF, respectively.
In May of 2018, the original developer, BPG Ocoee 1 LLC completed construction of the infrastructure
improvements and entered into a two year Maintenance, Materials, and Workmanship Agreement (MM&W
Agreement) with the City and provided a Letter of Credit insuring the public improvements. The property has
since changed ownership from BPG Ocoee 1 LLC to BCI IV Park 429 Logistics Center LLC. The current
ownership wishes to replace the existing MM&W Agreement and Letter of Credit with a MM&W Agreement and
Letter of Credit between themselves and the City.
BCI IV Park 429 Logistics Center LLC has provided the City with a Letter of Credit in the amount of 10% of the
constructed improvements ($74,722.50). The attached Maintenance, Materials, and Workmanship Agreement
with Letter of Credit (Irrevocable Stand-By Letter of Credit issued by Wells Fargo Bank) acts as the executable
document between the developer and the City. The Letter of Credit will be kept on file with the signed
Maintenance, Materials, and Workmanship Agreement; this will ensure that funds will be available should they be
needed during the two-year warranty period. The existing MM&W Agreement with BPG Ocoee 1 LLC will be
voided and the original Letter of Credit will be returned to BPG Ocoee 1 LLC.
The new Surety will be returned to BCI IV Park 429 Logistics Center LLC 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 BCI IV Park 429 Logistics Center LLC, for the two-year
warranty for The Park at 429, Lot 3 and execute the Maintenance, Materials, and Workmanship Agreement with
Letter of Credit?
RECOMMENDATION:
The Development Services Department recommends the acceptance of the Surety and the execution of the
Maintenance, Materials, and Workmanship Agreement with Letter of Credit with BCI IV Park 429 Logistics
Center LLC for The Park at 429, Lot 3.
ATTACHMENTS:
Maintenance, Materials, and Workmanship Escrow Agreement.
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: PARK AT 429 92/93 LOT 3)
THIS MAINTENANCE,MATERIALS,AND WORKMANSHIP AGREEMENT
(this"Agreement")is entered into this day of , 20_,by BCI IV Park
429 Logistics Center LLC, a Delaware 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 PARK AT 429 92/93 LOT 3 (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 March 7, 2017: The Park at 429 Planned Unit Development(PUD)(FKA
East Crown Industrial PUD); 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,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 SEVENTY-FOUR THOUSAND SEVEN HUNDRED TWENTY-TWO
DOLLARS AND FIFTY CENTS ($74,722.50)to guaranty the maintenance,materials,
workmanship, and structural integrity of the Improvements and the other obligations of the
ORLA_1688244.1
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
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.
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ORLA_1688244.1
IN WITNESS WHEREOF,the parties hereto have caused these presents to be signed as
of the date and year first above written.
DEVELOPER:
BCI IV PARK 429 LOGISTICS CENTER
LLC, a Delaware limited liability company
By: BCI IV Operating Partnership LP, a
Delaware limited partnership, its sole member
By: Black Creek Industrial REIT IV Inc., a
Maryland corporation,its general partner
By: --Nsf..44 ' -
Prmt N ,, X
Title: V49- l>‹,1- wc
CITY:
ATTEST:
CITY OF OCOEE,FLORIDA, a Florida
municipal corporation
By:
Melanie Sibbitt, 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"
(Legal Description of Real Property Constituting the Subdivision)
Lot 3,of THE PARK AT 429,according to the plan thereof,recorded in Plat Book 92,Page 93 through
96,Public Records of Orange County,Florida.
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ORLA 1688244.1
EDIT "B"
FORM OF LETTER OF CREDIT
-6-
ORLA_1688244.1
Wells Fargo Bank,N.A.
U.S.Trade Services
Standby Letters of Credit
401 N.Research Pkwy,ist Floor
MAC D4004-o17,
Winston-Salem,NC 27101-4157
Phone:1(800)76-3862 Option 2
E-Mail:sblc-new@wellsfargo.com
Irrevocable Standby Letter Of Credit
Number: IS000048842U
Issue Date: August 21,2018
BENEFICIARY APPLICANT
CITY OF OCOEE BCI IV PARK 429 LOGISTICS CENTER LLC
ATTN:CITY ENGINEER 518 17TH STREET,SUITE 1700
150 NORTH LAKESHORE DR. DENVER,COLORADO 80202
OCOEE,FLORIDA 34761
LETTER OF CREDIT ISSUE AMOUNT USD 74,722.50 EXPIRY DATE AUGUST 21,2019
LADIES AND GENTLEMEN:
WE HEREBY OPEN OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR FOR THE ACCOUNT OF
THE ABOVE REFERENCED APPLICANT IN THE AGGREGATE AMOUNT OF USD74722.50 (USD SEVENTY FOUR
THOUSAND SEVEN HUNDRED TWENTY TWO AND 50/100)WHICH IS AVAILABLE BY PAYMENT UPON
PRESENTATION OF THE FOLLOWING DOCUMENTS:
1.A DRAFT DRAWN ON US AT SIGHT MARKED"DRAWN UNDER WELLS FARGO BANK,N.A.STANDBY LETTER
OF CREDIT NO.IS000048842U."
2.THE ORIGINAL LETTER OF CREDIT AND ANY AMENDMENTS ATTACHED THERETO.
3.A DATED STATEMENT ISSUED ON THE LETTERHEAD OF THE BENEFICIARY AND PURPORTEDLY SIGNED BY
AN AUTHORIZED REPRESENTATIVE STATING ONE OF THE FOLLOWING:
A. A STATEMENT PURPORTEDLY SIGNED BY THE MAYOR,CITY MANAGER OR AUTHORIZED
REPRESENTATIVE OF THE CITY OF OCOEE,SIGNED AS SUCH,STATING THAT"THE CITY IS ENTITLED TO
DRAW UPON THE LETTER OF CREDIT PURSUANT TO THE TERMS OF THAT CERTAIN MAINTENANCE,
MATERIAL AND WORKMANSHIP AGREEMENT BETWEEN THE CITY AND ACCOUNT PARTY WITH RESPECT TO
THE FOLLOWING SUBDIVISION:PARK AT 429 92/93 LOT 3."OR
B. A STATEMENT PURPORTEDLY SIGNED BY THE MAYOR,CITY MANAGER OR AUTHORIZED
REPRESENTATIVE OF THE CITY OF OCOEE,SIGNED AS SUCH,STATING 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
C. A STATEMENT PURPORTEDLY SIGNED BY THE MAYOR,CITY MANAGER OR AUTHORIZED Together we'll go far
Page 1 of 3
Each page of this document is an integral part - 0 tea, (
of this Irrevocable Standby Letter of Credit Number IS000048842U
REPRESENTATIVE OF THE CITY OF OCOEE,SIGNED AS SUCH,STATING THAT"WELLS FARGO BANK,N.A.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
D. A STATEMENT PURPORTEDLY SIGNED BY THE MAYOR,CITY MANAGER,OR AUTHORIZED
REPRESENTATIVE OF THE CITY OF OCOEE,SIGNED AS SUCH,STATING THAT"THE DRAWING IS DUE TO
APPLICANT FAILURE TO REPAIR,CORRECT AND/OR CURE A"DEFICIENCY"AS THAT TERM IS DEFINED IN
THAT CERTAIN MAINTENANCE,MATERIALS AND WORKMANSHIP AGREEMENT BETWEEN THE CITY AND
ACCOUNT PARTY WITH RESPECT TO THE FOLLOWING SUBDIVISION:PARK AT 429 92/93 LOT 3."
IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE DEEMED AUTOMATICALLY EXTENDED
WITHOUT WRITTEN AMENDMENT FOR ONE YEAR PERIODS FROM THE PRESENT OR ANY FUTURE EXPIRY
DATE UNLESS AT LEAST 90 CALENDAR DAYS PRIOR TO SUCH EXPIRATION DATE,WE SEND THE BENEFICIARY
NOTICE AT THE ABOVE STATED ADDRESS BY OVERNIGHT COURIER THAT WE ELECT NOT TO EXTEND THIS
LETTER OF CREDIT BEYOND THE INITIAL OR ANY EXTENDED EXPIRY DATE HEREOF.
THIS IRREVOCABLE LETTER OF CREDIT SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING.THIS
UNDERTAKING IS INDEPENDENT OF AND SHALL NOT IN ANY WAY BE MODIFIED,AMENDED,AMPLIFIED,OR
INCORPORATED BY REFERENCE TO ANY DOCUMENT,CONTRACT,OR AGREEMENT REFERENCED HEREIN.
WE HEREBY AGREE WITH YOU THAT DRAFT(S)DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS AND
CONDITIONS OF THIS CREDIT SHALL BE DULY HONORED IF PRESENTED TOGETHER WITH DOCUMENT(S)AS
SPECIFIED ABOVE AT OUR OFFICE LOCATED AT 401 N.RESEARCH PKWY,MAIL CODE D4004-017,WINSTON-
SALEM,NC 27101,ATTENTION:STANDBY LETTER OF CREDIT DEPT.ON OR BEFORE THE ABOVE STATED
EXPIRY DATE,OR ANY EXTENDED EXPIRY DATE IF APPLICABLE.
CANCELLATION PRIOR TO EXPIRATION:YOU MAY RETURN THIS LETTER OF CREDIT TO US FOR
CANCELLATION PRIOR TO ITS EXPIRATION PROVIDED THAT THIS LETTER OF CREDIT IS ACCOMPANIED BY
YOUR WRITTEN AGREEMENT TO ITS CANCELLATION.SUCH WRITTEN AGREEMENT TO CANCELLATION
SHOULD SPECIFICALLY REFERENCE THIS LETTER OF CREDIT BY NUMBER,CLEARLY INDICATE THAT IT IS
BEING RETURNED FOR CANCELLATION AND BE SIGNED BY A PERSON IDENTIFYING THEMSELVES AS
AUTHORIZED TO SIGN FOR YOU.
THIS LETTER OF CREDIT IS SUBJECT TO AND GOVERNED BY THE LAWS OF THE STATE OF FLORIDA AND THE
INTERNATIONAL STANDBY PRACTICES 1998,INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO.
590("ISP98")AND,IN THE EVENT OF ANY CONFLICT,THE LAWS OF THE STATE OF FLORIDA WILL CONTROL.
Very Truly Yours,
WELLS FARGO BANK,N.A.
BY: ► /. t A
Authorized Signature
The original of the Letter of Credit contains an embossed seal over the Authorized Signature.
Together we'll go far
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Each page of this multipage document is an integral part �-
of this Irrevocable Standby Letter of Credit Number 15000048842U
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 or 401 N.Research Pkwy, 1st Floor
MAC A0283-023, MAC D4004-017,
San Leandro,CA 94577-6922 WINSTON-SALEM,NC 27101-4157
Phone inquiries regarding this credit should be directed to our Standby Customer Connection Professionals
1-800-776-3862 Option 2 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 5:00 p.m.EST)
Together we'll go far
Page 3of3 ��
VO,IV *4:Q40 Vf—A4t
Each page of this multipage document is an integral part
of this Irrevocable Standby Letter of Credit Number I5000048842U