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Item #03 Maintenance, Materials, and Workmanship Agreements for McCormick Reserve PUD Phases 1 & 2 tom/ ocoee flariida AGENDA ITEM COVER SHEET Meeting Date: April 4, 2017 Item # 3 Reviewed By Contact Name: Milen D. Womack, Mow Department Director: Development Engineer Contact Number: 407-554-7081 City Manager: Subject: Certificate of Completion for McCormick Reserve Planned Unit Devel nt(PUD) Phase 2 a. Maintenance, Materials, and Workmanship Agreement with Letter of Credit for McCormick Reserve PUD, Phase 2. b. Maintenance, Materials, and Workmanship Agreement for Asphalt with Letter of Credit for McCormick Reserve PUD, Phases 1 and 2. (District 4—Commissioner Keller) Background Summary: a. McCormick Reserve is a 134 lot single family residential subdivision located on south of W McCormick Road between the Brynmar Estates Subdivision and Clarke Road. McCormick Reserve has been constructed in two phases — Phase One with 66 lots and Phase Two with 68 lots. The developer has completed construction of the infrastructure improvements for the second Phase of this subdivision, minus the second lift of asphalt, and has requested a Certificate of Completion. The infrastructure improvements include the water, sanitary sewer, and reuse utilities, stormwater collection system, and the extension of Clarke Road. 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. T-3 Ocoee has provided the City with a Letter of Credit in the amount of 10% of the Phase Two 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. 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. b. Additionally, the developer has furnished the City with a separate Surety to cover the construction cost of adding the second lift of asphalt to the all of the public streets of the subdivision. This arrangement will ensure that the final road surface is not worn or scarred during construction of the homes. The attached Maintenance, Materials, and Workmanship Agreement for Asphalt acts as the executable document between the developer and the City in the event the developer fails to provide the second lift of asphalt within two years of the issuance of the Certificate of Completion or when 80% of the homes have received Certificates of Occupancy. The Surety will be returned to the developer upon completion of the warranty period and the repair of any damages caused over that period. Issue: Should the City accept the Surety as provided by T-3 Ocoee, LLC for the two-year Maintenance, Materials, and Workmanship Agreement for McCormick Reserve Phase 2 and execute the Maintenance, Materials, and Workmanship Agreement; and should the City accept the Surety as provided by T-3 Ocoee, LLC for the Maintenance, Materials, and Workmanship Agreement for Asphalt for McCormick Reserve Phases 1 & 2 and execute the Maintenance, Materials, and Workmanship Agreement for Asphalt with T-3 Ocoee, LLC? Recommendations The Development Services Department recommends the acceptance of the Surety and the execution the Maintenance, Materials, and Workmanship Agreement with T-3 Ocoee, LLC for McCormick Reserve Phase 2; and recommends the acceptance of the Surety and the execution the Maintenance, Materials, and Workmanship Agreement for Asphalt with T-3 Ocoee, LLC for McCormick Reserve Phases 1 & 2. Attachments: 1. Maintenance, Materials, and Workmanship Agreement with Letter of Credit (McCormick Reserve PUD, Phase 2) 2. Maintenance, Materials, and Workmanship Agreement for Asphalt with Letter of Credit (McCormick Reserve PUD, Phase 1 & 2) Financial Impact: There are no financial impacts to the City in accepting the Surety for either Maintenance, Materials, and Workmanship Agreement. 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 () N/A 2 MAINTENANCE,MATERIALS,AND WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT (SUBDIVISION NAME/PHASE: McCormick Reserve PUD,Phase 2) THIS MAINTENANCE,MATERIALS,AND WORKMANSHIP AGREEMENT (this "Agreement") is entered into this day of ,20_,by T-3 Ocoee, LLC, a Florida limited liability company with an address at 17635 Tobacco Road, Lutz, Florida 33558, (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 McCormick Reserve, Phase II(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 April 7th ,2015 : McCormick Reserve PUD Preliminary/Final Development Plan; 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 Sun Trust(the`Bank) 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 THIRTY-THREE THOUSAND, SEVEN HUNDRED AND NINTY SIX DOLLARS AND EIGHTY EIGHT CENTS ($33,796.88)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 CO 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(I)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 -2- 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. 3- ORLA_1688244.7 DEVELOPER: T-3 Ocoee, LLC, a Florida Limited Liability Company, by T-3 Development, Inc., a Florida corporation,its sole manager BY Print Name: • Shannon, III Title: President 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 • -4- ORLA_1688244.1 EXHIBIT"A" (Legal Description of Real Property Constituting the Subdivision) McCormick Reserve — PHASE 2 TRACT K, McCORMICK RESERVE - PHASE ONE, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 87, PAGES 111 THROUGH 115, INCLUSIVE, OF THE PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA. -5- ORLA1688244.1 EXHIBIT"B" FORM OF LETTER OF CREDIT -6- • ORLA 1688244.1 0010.0. SUNTRUST" STANDBY LETTER OF CREDIT 70002343 DATE; FEBRUARY 16, 2017 APPLICANT: BENEFICIARY: T-3 OCOEE LLC CITY OF OCOEE 17635 TOBACCO ROAD CITY ENGINEER LUTZ, FL 33558 150 N LAKESHORE DRIVE OCOEE, FL 34761 FOR: USD 33, 796. 88 (US DOLLARS THIRTY THREE THOUSAND SEVEN HUNDRED NINETY SIX AND 88/100) DATE OF EXPIRATION: 2/17/2019 PLACE OF EXPIRATION: OUR COUNTERS RE: MCCORMICK RESERVE, PHASE 2 WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. 70002343, IN FAVOR OF CITY OF OCOEE, A FLORIDA MUNICIPAL CORPORATION, AND AUTHORIZE YOU TO DRAW ON SUNTRUST BANK, 200 SOUTH ORANGE AVENUE, ATTN: STANDBY LETTERS OF CREDIT DEPT. , GA ATL- 3707, ORLANDO, FL 32801 BY ORDER OF T-3 OCOEE LLC UP TO BUT NOT EXCEEDING THE AGGREGATE AMOUNT OF THIRTY THREE THOUSAND SEVEN HUNDRED NINETY SIX AND 88/100 U.S. DOLLARS ($33,796. 88) , 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: MCCORMICK RESERVE, PHASE 2 SUBDIVISION; OR 2. A STATEMENT PURPORTEDLY SIGNED BY THE MAYOR, CITY MANAGER OR AUTHORIZED REPRESENTATIVE TO THE EFFECT THAT THE PERFORMANCE OF APPLICANT'S OBLIGATION UNDER THE MAINTENANCE, MATERIALS AND WORKMANSHIP AGREEMENT HAS NOT BEEN COMPLETED YET AND THE LETTER OF CREDIT WILL EXPIRE WITHIN 30 DAYS FROM THE DATE OF THE DRAWING WITHOUT BEING EXTENDED OR REPLACED TO THE CITY'S SATISFACTION; OR 3. A STATEMENT PURPORTEDLY SIGNED BY THE MAYOR, CITY MANAGER OR AUTHORIZED REPRESENTATIVE TO THE EFFECT THAT SUNTRUST BANK 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 Page 1 of 3 70002343 1617{10105) pll� SUN RUST 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: MCCORMICK RESERVE, PHASE 2 SUBDIVISION. THIS LETTER OF CREDIT SHALL BE DEEMED IN FORCE UNTIL FEBRUARY 17, 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 VIA COURIER 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 EXTENDED TERM. DRAFTS MUST BEAR THE CLAUSE: "DRAWN UNDER LETTER OF CREDIT NO. 70002343, OF SUNTRUST BANK DATED FEBRUARY 16, 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, DOES NOT EXCEED THE LETTER OF CREDIT AMOUNT 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 YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO SUNTRUST BANK, 200 SOUTH ORANGE AVENUE, ATTN: STANDBY LETTERS OF CREDIT DEPT. , GA ATL- 3707, ORLANDO, FL 32801. THIS LETTER OF CREDIT WILL BE CONSIDERED AS CANCELED UPON RECEIPT BY US OF THE ORIGINAL CREDIT INSTRUMENT ALONG WITH A LETTER FROM THE BENEFICIARY AGREEING TO ITS CANCELLATION OR UPON ANY PRESENT OR FUTURE EXPIRY DATE HEREIN, 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. Page 2 of 3 70002343 15/7(10/05) ,,i , SUNTRUST PLEASE DIRECT ALL INQUIRIES TO: PHONE 800-951-7847 OPTION 3. SINCERELY, SUNTRUST BANK • Sandra Boxley AUTHORIZED SIGNAT$E SEAL Page 3 of 3 70002343 wn(lWO5 MAINTENANCE,MATERIALS,AND WORKMANSHIP AGREEMENT FOR ASPHALT WITH LETTER OF CREDIT (McCormick Reserve Phase 1 and 2) THIS MAINTENANCE, MATERIALS, AND WORKMANSHIP AGREEMENT FOR ASPHALT (this "Agreement") is entered into this day of 2017, by T-3 Ocoee, LLC, a Florida limited liability company with an address at 17635 Tobacco Road, Lutz, Florida 33558 (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 McCormick Reserve, Phase 1 and Phase 2 (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 April 7`", 2015 : McCormick Reserve PUD Preliminary/Final Development Plan; 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 SunTrust, 200 S. Orange Avenue, Orlando, Florida 32801, (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 ONE HUNDRED THIRTY SEVEN FOUR HUNDRED SEVENTY THREE and 36/100 DOLLARS ($137,473.36) 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: Second Lift of Asphalt and Warranty. (A) The parties agree that in order to achieve the standards set forth in the City of Ocoee Code of Ordinances, a second lift of asphalt ("Asphalt Improvement") will be installed in accordance with Orange County Road Construction Specifications, latest edition, on the roadways in Phase 1 and Phase 2 of the Subdivision within two (2) years of the issuance of the Certificate of Completion or at such time as 80% of the homes within the Subdivision have received a certificate of occupancy, whichever comes first. The Asphalt Improvement shall be completed in a quality and workmanlike manner. (B) For a period of one (1) year from the date of installation of the second lift of asphalt(the "Warranty Period"), the Developer shall maintain the Asphalt Improvement 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 Asphalt Improvement has not been completed or 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 Asphalt Improvement 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 and shall be extended to include the Warranty Period. 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, -2- ORLA1688244.1 including the City undertaking to complete the Asphalt Improvement. 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 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. -3- ORL 1688244.1 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 Asphalt 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. DEVELOPER: T-3 Ocoee,LLC, a Florida Limited Liability Company, by T-3 Development, Inc., a Florida corporation,its sole manager t By: 1► Print Name: Thi mas J. Shannon, III Title: President 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 ORIA_1688244.1 EXHIBIT"A" (Legal Description of Real Property Constituting the Subdivision.' McCormick Reserve— PHASE 1 MCCORMICK RESERVE-PHASE ONE, ACCORDING TO THE PLAT THEREOF, ASRECORDED IN PLAT BOOK 87, PAGES 111 THROUGH115, INCLUSIVE, OF THE PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA. -5- ORLA_1688244,1 EXHIBIT"B" FORM OF LETTER OF CREDIT -6- OR LA 1688244.1 SUN TRUST" STANDBY LETTER OF CREDIT 70002342 DATE: FEBRUARY 16, 2017 APPLICANT: BENEFICIARY: T-3 OCOEE LLC CITY OF OCOEE 17635 TOBACCO ROAD CITY ENGINEER LUTZ, FL 33558 150 N LAKESHORE DRIVE OCOEE, FL 34761 FOR: USD 137, 473.36 (US DOLLARS ONE HUNDRED THIRTY SEVEN THOUSAND FOUR HUNDRED SEVENTY THREE AND 36/100) DATE OF EXPIRATION: 2/17/2019 PLACE OF EXPIRATION: OUR COUNTERS SUBDIVISION NAME/PHASE: MCCORMICK RESERVE, PHASE 1 AND 2 WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. 70002342, IN FAVOR OF CITY OF OCOEE, A FLORIDA MUNICIPAL CORPORATION, AND AUTHORIZE YOU TO DRAW ON SUNTRUST BANK, 200 SOUTH ORANGE AVENUE, ATTN: STANDBY LETTERS OF CREDIT DEPT. , GA ATL- 3707, ORLANDO, FL 32801 BY ORDER OF T-3 OCOEE LLC UP TO BUT NOT EXCEEDING THE AGGREGATE AMOUNT OF ONE HUNDRED THIRTY SEVEN THOUSAND FOUR HUNDRED SEVENTY THREE AND 36/100 U.S. DOLLARS ($137, 473.36) , 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 MCCORMICK RESERVE SUBDIVISION; OR 2. A STATEMENT PURPORTEDLY SIGNED BY THE MAYOR, CITY MANAGER OR AUTHORIZED REPRESENTATIVE TO THE EFFECT THAT THE PERFORMANCE OF APPLICANT'S OBLIGATION UNDER. THE MAINTENANCE, MATERIALS AND WORKMANSHIP AGREEMENT HAS NOT BEEN COMPLETED YET AND THE LETTER OF CREDIT WILL EXPIRE WITHIN 30 DAYS FROM THE DATE OF THE DRAWING WITHOUT BEING EXTENDED OR REPLACED TO THE CITY'S SATISFACTION; OR 3. A STATEMENT PURPORTEDLY SIGNED BY THE MAYOR, CITY MANAGER OR AUTHORIZED REPRESENTATIVE TO THE EFFECT THAT SUNTRUST BANK 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 Page 1 of 3 70002342 1611 oN05) lag SUNTIRUSF 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: MCCORMICK RESERVE SUBDIVISION. THIS LETTER OF CREDIT SHALL BE DEEMED IN FORCE UNTIL FEBRUARY 17, 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 VIA COURIER 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 EXTENDED TERM. DRAFTS MUST BEAR THE CLAUSE: "DRAWN UNDER LETTER OF CREDIT NO. 70002342 OF SUNTRUST BANK, DATED FEBRUARY 16, 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 HE DRAWN, DOES NOT EXCEED THE LETTER OF CREDIT AMOUNT 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 YOU THAT DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT WILL BE DULY HONORED UPON PRESENTATION TO SUNTRUST BANK, 200 SOUTH ORANGE AVENUE, ATTN: STANDBY LETTERS OF CREDIT DEPT. , GA ATL- 3707, ORLANDO, FL 32801. THIS LETTER OF CREDIT WILL BE CONSIDERED AS CANCELED UPON RECEIPT BY US OF THE ORIGINAL CREDIT INSTRUMENT ALONG WITH A LETTER FROM THE BENEFICIARY AGREEING TO ITS CANCELLATION OR UPON ANY PRESENT OR FUTURE EXPIRY DATE HEREIN, 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. Page 2 of 3 70002342 1517(14/05) /'' SUNTRUST" PLEASE DIRECT ALL INQUIRIES TO: PHONE 800-951-7847 OPTION 3. SINCERELY, SUNTRUST BANKSandra pdey VICE President SEAL AUTHORIZED SIGN T R Page 3 of 3 70002342 wn(10/05)