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Item 05 Approval of a Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Agreement with Yellow Rock Construction LLC for Inspiration PUD • A ocoee florida AGENDA ITEM COVER SHEET Meeting Date: January 19, 2021 Item # 05 Reviewed By: Contact Name: Martrivus Keaton / Department Director: Michael,,; uMer Contact Number: 407-554-7109 City Manager: 'Robe r•.ty ,_ ' r Subject: Approval of a Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Agreement with Yellow Rock Construction, LLC for Inspiration PUD Commission District 3 - Richard Firstner Background Summary: Inspiration PUD comprises three (3) sections (Commercial, Residential, and Heller Road(public)). The PUD is located on the west side of Maguire Road, just south of the Florida Turnpike. The commercial section will have four (4) buildings and general parking. The Residential section will consist of 90 luxury townhomes. Heller Road is a public road north of Tomyn Blvd, which will be used to access Inspiration. The infrastructure improvements include the potable water, sanitary sewer, reclaimed water, other private utilities, the roadways, stormwater collection system, perimeter wall/fencing, and associated landscaping. Identified punch list repairs are currently being completed, and the developer is nearly ready to start the two-year warranty period for the public improvements. 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, Yellow Rock Construction, LLC, has provided the City with a Letter of Credit in the amount of 10% of the constructed improvements. The Letter of Credit provided is for a grand total of $200,282.37. This letter of credit covers the maintenance, materials, and workmanship for the Commercial ($61,634.55), Residential ($92,451.82), and Heller Rd ($46,196.00) sections, respectively. The attached Maintenance, Materials, and Workmanship Agreements (Form 8 from the Land Development Code) 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 those two years. Issue: Should the City accept the Surety provided by Yellow Rock Construction, LLC, for the two-year warranties for Inspiration PUD and execute the Maintenance, Materials, and Workmanship Agreement? Recommendations: The Development Services Department recommends the acceptance of the Surety and the execution of the Maintenance, Materials, and Workmanship Agreement with Yellow Rock Construction, LLC,for the Inspiration PUD. Attachments: 1. Maintenance, Materials, and Workmanship Agreement with Yellow Rock Construction, LLC. 2. Irrevocable Stand-By Letter of Credit Number BBA-19-2587 issued by BB Americas Bank. 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") __ _'i_ Public Hearing Fo Clerk's Dept Use: Ordinance First Reading A 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. l' -° N/A Reviewed by N/A 2 MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT (SUBDIVISION NAME!PHASE: INSPIRATION TOWN CENTER) THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT (this "Agreement") is entered into this _ day of , 20®, by DIPLOMAT_ DEVELOPMENT GROUP, LLC (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 Inspiration 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 March 25th, 2019: Preliminary/Final Site Plan and Subdivision Plan for Inspiration Town Center and Luxury Homes. WRERENS;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 LA2 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 BANCO DO BRASIL AMERICAS (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 It " and by this reference made a part hereof("Letter of Credit`). NOW THEREFORE, the parties agree as follows: SECTION 1: 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 Two Hundred Thousand Two Hundred EIghty-Two Dollars and Thirty- Seven Cents DOLLARS ($200,282.37 )to guaranty the maintenance, materials, ORLA_1600244.1 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 1: 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 2: 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 3: 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 4: City's Use of Funds Drawn on Letter of Credit. -2- ORLA_16B8244.1 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 5: 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 6: 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 7: 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 8: 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 9: Construction. -3- ORLA 16E18244.1 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. DEVELOPER: By: PnnVI ame: Title: No . 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_. SHUFFIELD, LOWMAN & WILSON, P.A. By: City Attorney .4. ORl1+ }6E18244.11 Exhibit"A" A PTiOJi A$ n m =; PARCEL I That part of the great f2 acres of The 5'authxast 11'4 of the iVar#hecrst 11. of Section 30. Township 22 South, Range 28 East tying South of Vie Florfdo Turnp;ke, LESS the South J1O feet thereof, art lying and bung in Orange County, Ftar-td2. PARCEL 2 TO ETA,,'Eft 1'1ITf1 • The South 30 feet elf that part 6f 1he West 72 enres of the Southeast 1/4 -of fhe Pi(orthecr_-,f• 7/4 of Srd Qn 38, Township 22 South. an je 28 Eost lying south rf Me Florida turnpike. off ()ring- ond .being • irS Orortge County, Porto, o/I/r the North 1/2 of the wooled Right rht of Way &ire South of the i0,1ds BQUN1}..t Y SURVEY PM/CERTIFIED TJ_ City of Ucoe.g, Florida; Shrifield, Lawman & Wilson; Psi YYaltaw Rack Cos-Animation, LLC1 Diplomat Devolep ent cup, LLC; ki gritr Rood LLC',� Ida fund a VVloso; Marley ) oglhoesr RPM innvestmen2 Holdings, LLWi Leonard H. Baird; Old Repritbfto Natfonoi Title insurones- Corrkpony NOTES OORI ESPONO1NO TO OLD 'EP(JBL1O NATIONAL TITLE 1NSun.A. JOE COMPANY OWNER & ENCUMBRANCE PROPERTY (NFOR&AT 1ON REPORT, AGENT FILE #INSPJR4TtON OOGOEB PGL A, FILE r 171 16662 THE SUF VEYQR -i4.5' LIMITED HIS REVIEW TO 5E.RcH FVP. EA5€F E?JT 'ESCR/PTION5 THAT LIE WITHIN THE SUBJECT SITE AS PER THE .)OCJMENTS THAT 1-14VE SEEN FURNISHED TO THE SURVEYOR PERTAINING ID THE ABOVE REFERENCED REPORT, OR, BOOK T t fj ; PAGE 5;'00: PLOTTED HEREON .5, aR,. BOOK 3894, PAGE 1365/O,R_ BOOK 4702, PAGE 2589/O,R, BOOK 5896, PAGE 3,5, /O,R. BOOK 6432, PAGE 2130; SUBJECT TO: NO PLOTTABLE EASEMENTS 6, OR. BOOK 40344 PAGE 2.91/O.R. BOOK 4702, PAGE 3B77OR. BOOk 4702, PAGE 257 /0 R. BOOK 643 . PAGE 21116 SUBJECT TO: NO PLOTIABLE EASEMENTS 7 O_r4. BOOK 4240, PAGE 1 Q53; SUBJECT TO: NO PLOITABLE EASEMENTS O.R. BOOK 9801, PAGE 6815; SU JECT TO: PLOTTED HEREON 9_ O.P. DOCUMENT 2OT6Q14. 156; SUBJECT TO: NO PLOTTABLE E►SEMEN'TS -5- r -, �__ - - _ ,�--—�� — _ �......e .. .-.. _. .mow ,- tr-iv.c. 'i—_--•.— .._ EXHIBIT '.'B" • FORM OF LETTER OF CREDIT o � • Mee Following Paget ✓ 1 Y ' d I a i Pta 4 � S ° I I 1 1 ' � I -V- QRL16Q6244.1 tea,L'` hank, _ IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER BBA-19-2587 SUBDIVISION NAME/PHASE:INSPIRATION. Applicant Beneficiary City of Ocoee Yellow Rock Construction,LLC 150 North Lakeshore Drive 6965 Piazza Grande Ave Ocoee,FL 34761 Suite 406 • Orlando,FL 32835 Issuing Bank ATTENTION: BB Americas Bank City Engineer 1221 Brickell Ave Suite 2200 150 North Lakeshore Drive Miami,FL 33131 Ocoee,FL 34761 AMOUNT-$200,282.37 Two Hundred Thousand,Two Hundred Eighty Two ' Dollars and Thirty Seven Cents • DATE OF ISSUE November 24,2020 DATE OF EXPIRY • • November 24,2022 We hereby establish our Irrevocable Standby Letter of Credit#BBA-19-2587,in favor of City of Ocoee,a Florida municipal corporation,and authorize you to draw on BB Americas Bank(the`Bank"),at 1221 Brickell Avenue Suite 2200,Miami,FL 33131 by order of Yellow Rock Construction,LLC up to but not exceeding the aggregate amount of Two Hundred Thousand, Two Hundred Eighty Two Dollars and Thirty Seven Cents Dollars($200,282.37),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: 1. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:"We hereby certify that the funds drawn under Letter of Credit No. BBA-19-2587 issued by Bank are due by reason of Applicant's failure to complete the following obligation: (list what Applicant failed to complete and reference provision of City Code);or 2. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:"We hereby certify that the performance of Applicant's obligation has not yet been completed and the letter of credit will expire within 30 days from the date of the drawing without being extended or replaced to the City of Ocoee's satisfaction; or 1221 Brickell Avenue Suite 2200-Miami,FL 33131 Phone:1-855-377-2555 International:1-305-350-1100 Member www bbamericas.com FDIC 1;;:,:.;; 3. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:'We hereby certify that we have received a notice of non-renewal or termination of this letter of credit prior to the current expiration date of November 24, 2022 that obligations to the City of Ocoee remain outstanding,and that we have not received a replacement letter of credit in a form acceptable to us." This letter of credit shall be deemed in force until November 24,2022,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 BBA 19-2587 of BB Americas Bank,dated November 24,2020." 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 BB Americas Bank 1221 Brickeil Ave Suite 2200,Miami,FL 33131. 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. 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) Brenner Cavalcante Chief Lending&Information Technology Officer,EVP MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT (SUBDIVISION NAME I PHASE: INSPIRATION LUXURY HOMES) THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT (this "Agreement") is entered into this _ day of 20 by RPM INVESTMENTS HOLDING, LLC (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 Inspiration 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 March 25, 2019: PreliminarylFinal Site Plan and Subdivision Plan for Inspiration Town Center and Luxury Homes ; 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 BANCO-DO-BRASIL:AMERICAS (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 "and by this reference made a part hereof("Letter of Credit"). NOW THEREFORE, the parties agree as follows: SECTION 1: 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 Twn Nitnfirart Thousand Two Hundred Eighty-Two Uol!ars and Thirty- Seven Cents DOLLARS anvil?3a... to guaranty the maintenance, materials, ORU1 1688244.1 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 1: 2-'fear Warrant 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 2; 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 3: 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 4: Ct 's Use of'Funds Drawn on Letter of Credit. -2- ORLA I0B02d4 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 5: 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 6: 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 7: 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 8: 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 9: Construction. -3- ORIA 1000244.1 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. DEVELOPER: By: . ._.. Print ame: Title: kit, atf dHtli . ' -. 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_. SHUFFIELD, LOWMAN &WILSON, P.A. By: City Attorney -4- 0I LA 1688244.1 Exhibit "A" DaarPTAW AS NIVED; PARCEL 1 That port of the Weet €2 acres of the Southeost 1./4 of the Northeast 1/4 of Section ,30. Township 22 South, Range 26 East lying South of the. nor-No Turnp;ke, LESS the South JO feet thereof, ail !ping and being in Orange County, Florida. PARCEL 2 TOGETHER WITH The South 30 fad of that prrrf of the West 72 cures of the SouFhcosf 174 of the r orfheent 'f/4 of Section 30, Township 22 Souh, Range 28 East Jyfng South of the Florida Turnpike, off tying and being in Orange County, F1orfda, o. 'f/r the North 1/2 of the v000tea Right of Way lying South of the toad% 646sorib ors Pewee.' 1 a, yre. BOUNDARY SURVEY FOR/CERTIFIED TO: City of Ocoee-, Florida; Shuffield, Lowman & Neon, PA; Yelrrw Rock CCnetructton., LLC; Dip1ornat Development Croup, LLC; ,Maguire Rood LLC; Raimuado D. Volaso; Nola J.fagJhriee; RPM lnvesimenle FloIding€, LLC; Leonard H. Baird; Did Repablie. NotkoloJ Title insurance Cr.r nPcrnx NOTES CORRESPONDING TO OLD REPUEIDC NATIONAL TITLE INSURANCE COMPANY OWNER & ENCUMBRANCE PROPERTY fiVFORMAT 1ON REPORT, AGENT FILE OINSF!RATION OCOEE PAL A, FILE#17716662 THE SURVEYOR HAS LIMITED HIS REVIEW TO SEARCH FOR EASEMENT DESCRIPTIONS THAT LtE WITHIN THE SUBJECT SITE AS PEP THE DOCUMENTS THAT HAVE BEEN FURNISHED TO THE SURVEYOR PERTAINING TO THE ABOVE REFERENCED REPORT O R, BOOK 1157, PAGE 590: PLOTTED HEREON 5, OR. BOOK 3894, PAGE 1363/0,R, BOOK 4702, PAGE 2589/0,R. BOOK 5898, PAGE 353110,R. BOOK 6432, PAGE 2130; SUBJECT TO: NO PLOTIABLE EASEMENTS ', O,R. BOOK 4034, PAGE 297/0.RR, BOOK 4702, PAGE 357/O.R. BOOK 47f12, PAGE 257 /0.R. BOOK 6432, PAGE 2118; SUBJECT TO: NO PLOTIABLE EASEMENTS 7. OR. BOOK 4240, PAGE 1053; SUBJECT 1O. NO PLOTTARLE EASEMENTS O,R. BOOK 9801, PAGE 6875; SUBJECT TO: PLOTTED HEREON 9_ O.f DDCLtMENT ' 2O T tad 14515B; SUBJECT TO: NO PLOTiABLE EASFtulElv'TS -5- EXHIBIT"B" FORM OF LETTER OF CREDIT 4See Followlnq Pane) I f 4 4 a • � a j'{ I ff Y4 o UA.104a244.1 ..a gpaa® w wa.essrt aY wes ar- 4 ?r _,- - a .wwr m�br'41-#fi •fie o,.s a toe . t^ .BBA iER1cA ,Tank. . IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER BBA-19-2587 SUBDIVISION NAME/PHASE:INSPIRATION. Applicant Beneficiary City of Ocoee Yellow Rock Construction,LLC 150 North Lakeshore Drive 6965 Piazza Grande Ave Ocoee,FL 34761 Suite 406 Orlando,FL 32835 Issuing Bank ATTENTION: BB Americas Bank City Engineer 1221 Brickell Ave Suite 2200 150 North Lakeshore Drive Miami,Fl.33131 Ocoee,FL 34761 AMOUNT-$200,282.37 Two Hundred Thousand,Two Hundred Eighty Two Dollars and Thirty Seven Cents DATE OF ISSUE November 24,2020 DATE OF EXPIRY November 24,2022 We hereby establish our Irrevocable Standby Letter of Credit#BBA-19-2587,in favor of City of Ocoee,a Florida municipal corporation,and authorize you to draw on BB Americas Bank(the"Bank"),at 1221 Brickell Avenue Suite 2200,Miami,FL 33131 by order of Yellow Rock Construction,LLC up to but not exceeding the aggregate amount of Two Hundred Thousand, Two Hundred Eighty Two Dollars and Thirty Seven Cents Dollars($200,282.37),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: 1. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:"We hereby certify that the funds drawn under Letter of Credit No. BBA-19-2587 issued by Bank are due by reason of Applicant's failure to complete the following obligation: (list what Applicant failed to complete and reference provision of City Code);or 2. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:"We hereby certify that the performance of Applicant's obligation has not yet been completed and the letter of credit will expire within 30 days from the date of the drawing without being extended or replaced to the City of Ocoee's satisfaction; or 1221 Brickell Avenue Suite 2200-Miami,FL 33131 Phone:1-855-377-2555 International:1-305-350-1100 Member www bbamericas.com FDIC L-71 3. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:"We - hereby certify that we have received a notice of non-renewal or termination of this letter of credit prior to the current expiration date of November 24, 2022 that obligations to the City of Ocoee remain outstanding,and that we have not received a replacement letter of credit in a form acceptable to us." This letter of credit shall be deemed in force until November 24,2022,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 BBA 19-2587 of BB Americas Bank,dated November 24,2020." 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 BB Americas Bank 1221 Brickell Ave Suite 2200,Miami,FL 33131. 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. 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) Brenner Cavalcante Chief Lending&Information Technology Officer,EVP ' I MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT (SUBDIVISION NAME /PHASE: HELLER BLVD) THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT(this 'Agreement") is entered into this _ day of 20 by RPM INVESTMENTS HOLDING, LLC AND DIPLOMAT DEVELOPMENT GROUP, LLC (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 Inspiration 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 March 25 , 2019: Preliminary! Final Design Plan for Heller Boulevard 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 BANCO DO BRASIL AMERICAS (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 1: 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 Two Hundred Thousand Two Hundred Eighty-Two Dollars 37(100 DOLLARS a 200,282.37 ) to guaranty the maintenance, materials, workmanship, and structural ORLA_1888244.1 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 1: 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 andlor 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 shalt 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 2: City's Right to Qirew_ori! 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 3: 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 4: City's Use of Funds Drawn on Letter of Credit. -2- ORL.A l08'244.1 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 5: 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 6: 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 7: 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 8: Continued Aoplicabilityof 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 9: Construction, -3- OF LA_)BBB244.t 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, DEVELOPER: By: 7 Prin am ' AA Afewb Title: 040,24:1' • CITY: ATTEST: CITY OF OCOEE, FLORIDA, a Florida municipal corporation By: Melanie Sibbitt, City Clark 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_, SHUFFIELD, LOWMAN &WILSON, P.A. By: City Attorney -4- ©RLA 1688244.1 Exhibit "A" PARCEL t That part of the West 72 gores- of the 573lJtheast 1.71 of the Northeast l + of Section 3O. Township 22 South, Range 26 East tying South of the Roddy Turrrp;ke, LESS The South 3CJ feet thereof, oil Tying and bG'..ing In Orange COUrrtyr Florido. PARCEL 2 TOGETHER WIN • The' South 30 feet erf that par/ of the West 12 unres nF Sou 1/4 of the NorthecrsF 1/4 of Seri ion JO. Tournship 22 Sou t, Rsrrje 28 Post lying South of the Florida Tumpikm oil tying and .being In Orono County, Ftoritto, the North 1/2 of the mooted Right of Woy bring South of the toads doscti2md as Poo ' 7 re. BOUNDARY SURVEY FOR7CFJ TJ 7ED TO City of UcOer-, Ftar'ido; Shuffietei, Lowman & Wiitsoti P.l4- YetJoty Rock Corratfactiop„. LLC, Diplo mat Devalopmant Groafr LLc; kdficgaim+ Rood LLC'r Raimunda D. 'VelOSal Mario ktoglhaos; RPM lnveslmonis Holdings, LLC; Leonard H. Baird; Old f e ,bir`r ti'anol Trtte Insurance �'ctirTrtrC�r7y NOTES c0R 'ESPONDi1i TO €L O i PU5LiC NATIONAL TITLE 1NS{1fs'A Dr COMPANY OWNER & ENCUMBRANCE PROPERTY INFORMATION R 'FORT AGENT FILE JNSFIRATIQJcJ OOOEE PC'L A, FJLE. f 711 6662 • ?HE SURVEYOR HAS ,L1lATEtJ HIS REVIEW TO SEARCH FOR EASEMENT DESCRIPTIONS THAT LIE WJTH!N THE SSI,.JoJECT SITE AS' t Eft THE DOCUMENTS THAT HAve OEE`N FURNISHED TO THE' SURVEYOR PERTNNIPJG TO TNT' ABOVE REFERENCED REPORT ( O R. BOOK T f 67, PAGE 590: PLOTTED HEREON 5, O f2_ BOOK 33894., PAGE 7363/0.f. BOOK 4702, PAGE 2.5S9/O,J', BOOK 5896, PAGE 3531/0,R. BOOK 6432, PAGE 2130; SUBJECT TO: NO PLOTTABLE EASEMENTS 6. O.R. BOOK 4034, PAGE 291/O.R. BOOK 4102, PAGE 357/O.xR. 1300K 4702, PAGE 2576/0.R. BOOK 6 2. RAGE 2116; SUBJECT TO: NO PLOTTABLE EASEMENTS 7 O.R. BOOK 4240; PAGE 1053; SUBJECT TO: NO PLOT-FABLE EASEMENTS O.R. BOOK 9801, PAGE 6875; SUBJECT TO; PLOTTED HEREON a_ 0.k OOC:AA.1Ea" T 2OT50145156; SUBJECTTO: NO PLDTFABLE EASEMENTS -5- _. EXHIBIT"IV FORM OF LETTER OF CREDIT Mee F0110V1414 Pane) I I I. I 1 4 I • 1• ORLAJB88244.1 IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER BBA-19-2587 SUBDIVISION NAME/PHASE:INSPIRATION. Applicant Beneficiary City of Ocoee Yellow Rock Construction,LLC 150 North Lakeshore Drive 6965 Piazza Grande Ave Ocoee,FL 34761 Suite 406 • Orlando,FL 32835 Issuing Bank ATTENTION: BB Americas Bank City Engineer ' 1221 Brickell Ave Suite 2200 150 North Lakeshore Drive Miami,Fl.33131 Ocoee,FL 34761 AMOUNT-$200,282.37 Two Hundred Thousand,Two Hundred Eighty Two Dollars and Thirty Seven Cents • DATE OF ISSUE November 24,2020 • DATE OF EXPIRY • November 24,2022 We hereby establish our Irrevocable Standby Letter of Credit#BBA-19-2587,in favor of City of Ocoee,a Florida municipal corporation,and authorize you to draw on BB Americas Bank(the'Bank"),at 1221 Brickell Avenue Suite 2200,Miami,FL 33131 by order of Yellow Rock Construction,LLC up to but not exceeding the aggregate amount of Two Hundred Thousand, Two Hundred Eighty Two Dollars and Thirty Seven Cents Dollars($200,282,37),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: 1. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:"We hereby certify that the funds drawn under Letter of Credit No. BBA-19-2587 issued by Bank are due by reason of Applicant's failure to complete the following obligation: (list what Applicant failed to complete and reference provision of City Code);or 2. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:"We hereby certify that the performance of Applicant's obligation has not yet been completed and the letter of credit will expire within 30 days from the date of the drawing without being extended or replaced to the City of Ocoee's satisfaction; or 1221 Brickell Avenue Suite 2200-Miami,FL 33131 Phone:1-855-377-2555 . International:1-305-350-1100 Member www bbamericas.com FDIC I;;;,:_;: 3. A statement purportedly signed by the City of Ocoee Mayor or authorized representative reading as follows:"We - hereby certify that we have received a notice of non-renewal or termination of this letter of credit prior to the current expiration date of November 24, 2022 that obligations to the City of Ocoee remain outstanding,and that we have not received a replacement letter of credit in a form acceptable to us." This letter of credit shall be deemed in force until November 24,2022,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 BBA 19-2587 of BB Americas Bank,dated November 24,2020." 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 BB Americas Bank 1221 Brickell Ave Suite 2200, Miami,FL 33131. 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. 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(15P98)",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) Brenner Cavalcante Chief Lending&Information Technology Officer,EVP