Item #04 Approval of a Two-Year Warranty Surety and Maintenance, Materials, and Workmanship Agreement with Letter of Credit with Arbour Valley Development, LLC, for the Arbours at Crown Point Apartments ocoee
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AGENDA ITEM COVER SHEET
Meeting Date: November 7, 2017
Item #
Reviewed By:
Contact Name: Milen D. Womack, Department Director:
Development Engineer
Contact Number: 407-554-7081 City Manager:
Subject: Approval of a Two-Year Warranty Surety and Maintenance, Material , orkmanship
Agreement with Letter of Credit with Arbour Valley Development, LLC, for the Arbours at
Crown Point Apartments
(District 1 —Commissioner Grogan)
Background Summary:
The Arbours at Crown Point Apartments is an apartment complex located on the north side of West Road and
west of SR 429. The overall parcel is 28.1 acres in size, of which 17.64 is for 240 multi-family units with
associated recreation amenities, stormwater management areas, and public road access.
The developer has completed construction of the infrastructure improvements for the Arbours at Crown Point
Apartments and has requested a Certificate of Completion for this phase. The infrastructure improvements
include the water, sanitary sewer, and reclaimed water utilities, a new 12" reclaimed water line extension, a
portion of Fountains West Blvd and the associated stormwater collection system, and the perimeter fencing and
associated landscaping. The Arbours at Crown Point development also constructed a community building, pool,
BBQ area, vehicle wash area and exercise trail. The development is dedicating 25 feet on the north end to
connect the West Orange Trail to Ocoee-Apopka Road. All identified punch list repairs have been completed
and the developer is ready to start the two-year warranty period for the public infrastructure 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. Arbour Valley Development, LLC, has provided the City with a Letter of Credit in the amount of 10% of
the constructed improvements ($12,457.00). The attached Maintenance, Materials, and Workmanship
Agreement with Letter of Credit (Irrevocable Stand-By Letter of Credit issued by ServisFirst Bank) acts as the
executable document between the developer and the City.
The Surety will be returned to the developer upon completion of the two-year warranty period and the repair of
any damages caused over that two year period.
Issue:
Should the City accept the Surety as provided by Arbour Valley Development, LLC, for the two-year warranty
for the Arbours at Crown Point Apartments and execute the Maintenance, Materials, and Workmanship
Agreement with Letter of Credit with Arbour Valley Development, LLC?
Recommendations:
The Development Services Department recommends the acceptance of the Surety and the execution of the
Maintenance, Materials, and Workmanship Agreement with Letter of Credit with Arbour Valley Development,
LLC, for the Arbour at Crown Point Apartments.
Attachments:
1. Maintenance, Materials, and Workmanship Agreement with Letter of Credit with Arbour Valley
Development, LLC.
2. Irrevocable Stand-By Letter of Credit from ServisFirst 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")
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
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MAINTENANCE,MATERIALS,AND
WORKMANSHIP AGREEMENT WITH LETTER OF CREDIT
SUBDIVISION NAME/PHASE: ARBOURS AT CROWN POINT
THIS MAINTENANCE,MATERIALS,AND WORKMANSHIP AGREEMENT
(this "Agreement") is entered into this day of , 20 , by Arbour
Valley Development,LLC, a Florida 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 Arbours at Crown Point(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
Preliminary/Final Subdivision Plan approval by granted the Ocoee City Commission on October
22nd, 2015: Preliminary/Final Site for Arbours at Crown Point PUD, LS-2014-009 ;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 ServisFirst 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 TWELVE THOUSAND FOUR HUNDRED FIFTY-SEVEN DOLLARS
($12,457.00)to guaranty the maintenance, materials, workmanship, and structural integrity of the
Improvements and the other obligations of the Developer under this Agreement. The Letter of
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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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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.
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:
By: igkidi //17L---
Print Name: Gabe Ehrenstein
Title: Member
CITY:
ATTEST:
CITY OF OCOEE,FLORIDA, a Florida
municipal corporation
By:
Melanie Sibbitt, City Clerk By:
Rusty Johnson, Mayor
(SEAL)
FOR THE USE AND RELIANCE BY THE APPROVED BY THE OCOEE CITY
CITY OF OCOEE ONLY. APPROVED COMMISSION AT A MEETING
AS TO FORM AND LEGALITY HELD ON , 20_
this day of UNDER AGENDA ITEM NO.
,20
By:
City Attorney
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ORLA 1688244.1
EXHIBIT"A"
(Legal Description of Real Property Constituting the Subdivision)
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ORLA 1688244.1
LEGAL DESCRIPTION:
A PARCEL OF LAND BEING A PORTION OF TRACT 1,FOUNTAINS WEST AS RECORDED IN PLAT BOOK 72,PAGES 111-
116,PUBLIC RECORDS OF ORANGE COUNTY,FLORIDA AND A PORTION OF ORANGE COUNTY TAX PARCEL NUMBER
06-22-28-0000-00-046 BEING MORE FULLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHWEST CORNER OF TRACT 1,FOUNTAINS WEST AS RECORDED IN PLAT BOOK 72,PAGES
111 TO 116,PUBLIC RECORDS OF ORANGE COUNTY,FLORIDA;THENCE NORTH 05°13'58"WEST,ALONG THE WEST
LINE OF SAID TRACT 1,270.71 FEET TO THE POINT OF BEGINNING;THENCE CONTINUE NORTH 05°13'58"WEST,ALONG
SAID WEST LINE,60.15 FEET;THENCE NORTH 88°46'15"EAST,ALONG THE COMMON BOUNDARY LINE OF LOT 8 AND
TRACT 1 SAID PLAT OF FOUNTAINS WEST,28.23 FEET;THENCE NORTH 89°56'24"EAST,348.00 FEET;THENCE LEAVING
SAID COMMON BOUNDARY LINE RUN NORTH 00°33'00"WEST,ALONG THE WEST LINE OF SAID TRACT 1,795.83 FEET
TO THE NORTHWEST CORNER OF SAID TRACT 1;THENCE NORTH 87°56'46"EAST,ALONG THE NORTH LINE OF SAID
TRACT 1 AND THE NORTH LINE OF ORANGE COUNTY TAX PARCEL NUMBER 06-22-28-0000-00-046,984.20 FEET TO A
POINT ON THE WESTERLY RIGHT OF WAY LINE OF THE WEST ORANGE TRAIL AS RECORDED IN OFFICIAL RECORDS
BOOK 4958 PAGE 4527,PUBLIC RECORDS OF ORANGE COUNTY,FLORIDA;THENCE SOUTH 04°07'26"WEST,ALONG
SAID WEST LINE OF THE WEST ORANGE TRAIL,561.83 FEET;THENCE DEPARTING SAID TRAIL RUN SOUTH 89°56'24"
WEST 34.92 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF
105.00 FEET,A CENTRAL ANGLE OF 85°48'58"AND A CHORD BEARING OF SOUTH 47°01'55"WEST;THENCE
SOUTHWESTERLY ALONG THE ARC OF SAID CURVE A DISTANCE OF 157.27 FEET TO THE POINT OF TANGENCY;
THENCE SOUTH 04°07'26"WEST, 131.01 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE NORTHWESTERLY
HAVING A RADIUS OF 45.00 FEET,A CENTRAL ANGLE OF 85°48'58"AND A CHORD BEARING OF SOUTH 47°01'55"WEST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE A DISTANCE OF 67.40 FEET TO THE POINT OF
TANGENCY;THENCE SOUTH 89°56'24"WEST,604.88 FEET;THENCE SOUTH 00°03'36"EAST,60.00 FEET;THENCE SOUTH
89°56'24"WEST,484.25 FEET;THENCE SOUTH 88°46'15"WEST,23.42 FEET TO THE POINT OF BEGINNING.
SAID LANDS LYING AND BEING IN THE CITY OF OCOEE,ORANGE COUNTY,FLORIDA AND CONTAINING 768198 SQUARE
FEET(17.635 ACRES)MORE OR LESS.SAVEAS
EXHIBIT"B"
FORM OF LETTER OF CREDIT
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ORLA_1688244.1
SERVISFIRST BANK
Post Office Box 1508
Birmingham,Alabama 35201-1508
T 205.949.0302 F 205.949.0303
servisfirstbank.com
IRREVOCABLE STAND-BY LETTER OF CREDIT Servis 1st Bank
NUMBER 34241
SUBDIVISION NAME/PHASE: Arbours At Crown Point
Applicant Beneficiary
Arbours At Crown Point, LLC City of Ocoee
242 Inverness Center Drive 150 North Lakeshore Drive
Birmingham, AL 35242 Ocoee, FL 34761
Issuing Bank ATTENTION:
ServisFirst Bank City Engineer
850 Shades Creek Parkway, Suite 200 150 North Lakeshore Drive
Birmingham, AL 35209 Ocoee, FL 34761
Citizens Bank of Florida
Credit Department AMOUNT - $ 12,457.00
156 Geneva Drive WRITTEN DOLLAR AMOUNT AND
Oviedo, FL 32765 00/100's US DOLLARS
DATE OF ISSUE
11/8/2017
DATE OF EXPIRY
12/7/2019
We hereby establish our Irrevocable Standby Letter of Credit#34241 in favor of City of Ocoee,
a Florida municipal corporation, and authorize you to draw on ServisFirst Bank (the"Bank"), at
850 Shades Creek Parkway Birmingham, AL 35209 by order of Arbours At Crown Point, LLC
ORLA_1688244.1
up to but not exceeding the aggregate amount of Twelve Thousand, Four Hundred and Fifty
Seven Dollars ($12,457.00), 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: Arbours At Crown Point; 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 ServisFirst 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
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: Arbours
At Crown Point.
This letter of credit shall be deemed in force until December 7, 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(34241) of ServisFirst Bank, dated
November 8, 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 Citizens Bank of Florida location at 156 Geneva Drive Oviedo, FL 32765
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This letter of credit will be considered as canceled upon receipt by us or Citizens Bank of Florida
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.
•
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u o -• " ignature
ed Name) Lee McKinnon
Lee McKinnon
First Vice President
ServisFirst Bank
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