Item #05 Approval of Maintenance, Materials, and Workmanship Agreement with Letter of Credit for Forest Lake Estates, Phase 1 with JTD Land at Ocoee Pines, LLC ocoee
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AGENDA ITEM COVER SHEET
Meeting Date: March 7, 2017
Item # 5
Reviewed By:
Contact Name: Milen D. Womack, MN Department Director:
Development Engineer
Contact Number: 407-554-7081 City Manager: r/1/
Subject: Approval of Maintenance, Materials, and Workmanship Agreement with Letter of Credit for
Forest Lake Estates, Phase 1 with JTD Land at Ocoee Pines, LLC
(District 1 —Commissioner Grogan)
Background Summary:
Forest Lake Estates is a 278 lot single family residential subdivision located on Clarcona-Ocoee Road just East
of the Forest Lake Golf Course. Construction of the Forest Lake Estates subdivision has been divided into two
phases with 152 homes in the first phase and 126 in within the second phase. The developer has completed
construction of the infrastructure improvements for the entire subdivision and has requested a Certificate of
Completion for the first of two phases. The infrastructure improvements include the water, sanitary sewer, and
reuse utilities, the streets and stormwater collection system, and the perimeter wall and associated landscaping.
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 to cover
any possible damages discovered during the next two years, should the developer not choose to make those
repairs. JTD Land at Ocoee Pines, LLC has provided the City with a Letter of Credit in the amount of 10% of
the constructed improvements. The attached Maintenance, Materials, and Workmanship Escrow Agreement
(Form 8 from the Land Development Code) acts as the executable document between the developer and the
City in the event that the Surety is monetary. The Surety will be returned to the developer upon completion of
the two-year warranty period and the repair of any damages caused over that two year period.
Issue:
Should the City accept the Surety as provided by JTD Land at Ocoee Pines, LLC for the two-year warranty for
Forest Lake Estates and execute the Maintenance, Materials, and Workmanship Escrow Agreement with JTD
Land at Ocoee Pines, LLC?
Recommendations
The Development Services Department recommends the acceptance of the Surety and the execution the
Maintenance, Materials, and Workmanship Escrow Agreement with JTD Land at Ocoee Pines, LLC for Forest
Lake Estates.
Attachments:
1. Maintenance, Materials, and Workmanship Escrow Agreement with JTD Land at Ocoee Pines, LLC
2. Irrevocable Stand-By Letter of Credit Number 8875 from IberiaBank
Financial Impact:
There are no financial impacts to the City in accepting this two-year warranty Surety.
Type of Item: (please mark with an 'k')
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
MAINTENANCE, MATERIALS, AND
WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT
FOREST LAKE ESTATES, PHASE 1
THIS MAINTENANCE, MATERIALS,AND WORKMANSHIP AGREEMENT
(this "Agreement") is entered into this day of , 20 ,by JTD LAND
AT OCOEE PINES, 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 FOREST LAKE ESTATES, PHASE 1 (the
"Subdivision") and in connection therewith has installed with the approval of the City certain
roads, streets, sewer, water and reuse systems, drainage facilities (including retention and
detention ponds), and/or other improvements (collectively, the "Improvements") under the
provisions, conditions, and requirements of the City's Subdivision Regulations and the following
Final Subdivision Plan (or Preliminary/Final Subdivision Plan) approval by granted the Ocoee
City Commission on November 24, 2015: OCOEE PINES PUD PRELIMINARY/FINAL
SUBDIVISION PLAN, LS-2015-002, 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 IBERIA 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 THREE HUNDRED FORTY ONE THOUSAND EIGHT HUNDRED
THIRTY NINE DOLLARS AND 63/100 ($341, 839.63) to guaranty the maintenance, materials,
workmanship, and structural integrity of the Improvements and the other obligations of the
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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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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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DEVELOPER:
JTD LAND AT OCOEE PINES, LLC
By: / A;
Print Name: >;ng �
Title:
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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EDIT"A"
(Legal Description of Real Property Constituting the Subdivision)
SECTION 5, TOWNSHIP 22 SOUTH,RANGE 28 EAST
LOCATED IN THE CITY OF OCOEE, ORANGE COUNTY,FLORIDA
BEING A REPLAT OF TRACTS A, A-1, AND A PORTION OF TRACT C, OCOEE PINES, PLAT
BOOK 66, PAGES 94-95; AND A REPLAT OF LOTS 1 AND 2, BLOCK 9, LOTS 47 AND 48,
BLOCK 26, LOTS 26 AND 27, BLOCK 2, AND LOTS 28 AND 29, BLOCK 22, WEST ORANGE
PARK, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK M, PAGES 1, 4
AND 5; AND THE NORTH HALF OF VACATED SOUTH PARK ROW AND THE NORTH 'A OF
VACATED JAY AVENUE AS DESCRIBED IN OFFICIAL RECORDS BOOK 9514, PAGE 4517;
ALL OF THE PUBLIC RECORDS OF ORANGE COUNTY,FLORIDA.
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ORLA_1688244.1
EXHIBIT"B"
FORM OF LETTER OF CREDIT
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•
IBERIABANK Suite.a3s50Robinson Street
Orlando, FL 32801
www.iberiabank.corn
IRREVOCABLE STAND-BY LETTER OF CREDIT
NUMBER 8875
SUBDIVISION NAME/PHASE: Ocoee Pines Phase I &II
Applicant Beneficiary
City of Ocoee
JTD Land at Ocoee Pines, LLC 150 North Lakeshore Drive
210 S. Hoagland Blvd. Ocoee, FL 34761
Kissimmee, FL 34741
Issuing Bank ATTENTION:
City Engineer
IBERIABANK 150 North Lakeshore Drive
315 E. Robinson St. Ocoee, FL 34761
Suite 350
Orlando, FL 32801
AMOUNT - $341,839.63
THREE HUNDRED FORTY-ONE
THOUSAND EIGHT HUNDRED THIRTY-
NINE
63/100's US DOLLARS
DATE OF ISSUE
FEBRUARY 24, 2017
DATE OF EXPIRY
MARCH 24, 2019
We hereby establish our Irrevocable Standby Letter of Credit# 8875, in favor of City of
Ocoee, a Florida municipal corporation, and authorize you to draw on IBERIABANK at 315
E. Robinson St. Suite 350, Orlando, FL 32801 by order of JTD Land at Ocoee Pines, LLC up
to but not exceeding the aggregate amount of Three hundred forty-one thousand eight hundred
thirty-nine 63/100 Dollars ($341,839.63), 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 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: Ocoee Pines Phase I &II
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 IBERIABANK 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 deemed that certain Maintenance, Materials and Workmanship
Agreement between the City and Applicant with respect to the following Subdivision: Ocoee
Pines Phase 1 &2.
This letter of credit shall be deemed in force until March 24, 2019, 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 8875 of IBERIABANK dated
February 24, 2017."
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 the IBERIABANK, 315 E. Robinson St. Suite 350, Orlando, FL 32801.
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.
Brian Ca on
Vice President