HomeMy WebLinkAboutVI (C) Lake Bennet Centre Developer's Agreement AGENDA 4-4-95
"CENT R OF GOOD LIVING - PRIDE OF WEST ORANGE"
Item VI C
O� I COMMISSIONERS
•
•••• 10 O. CITY OF OCOEE RUSTY JOHNSON
• PAUL IN.FOSTER
Co O 150 N.LAKESHORE DRIVE SCOTT A.GLASS
f� AL1 r./ OCOEE,FLORIDA 34761-2258 JIM GLEASON
(407)656-2322 CITY MANAGER
jJ
f'P ek
Of Gp0v ELLIS SHAPIRO
SRP-488
STAFF REPORT
DATE: March 29, 1995
TO: The Honorable Mayor and City Commissioners
FROM: Russ Wagner, Director of Planning 0711.
SUBJ: Lake Bennet Centre Developer's Agreement
ISSUE:
Should the Honorable Mayor and City Commissioners approve a new
Lake Bennet Centre Developer's Agreement to replace the existing
Agreement?
BACKGROUND:
The Lake Bennet Centre property is located north of S.R. 50 and
east of Lake Bennet . The existing Lake Bennet Centre Developer' s
Agreement was approved on August 19, 1986 (attached) . At that
time, the property had just been annexed and rezoned to C-2 ,
Community Commercial District . Since the owners had no specific
plans for the property, the City required the execution of a
Developer's Agreement to help guide any future development of the
property.
On November 1 , 1994, the City Commission approved a Preliminary
Subdivision Plan (PSP) for the property which included certain
amendments to the original Agreement that were based upon a
specific plan of development . Condition of Approval No. 11 within
the Preliminary Subdivision Plan required the developer to revise
the existing Lake Bennet Centre Developer's Agreement prior to
Final Subdivision Plan approval in order to evidence these changes
and include any other legal requirements as specified by the City
Attorney. Due to complexity of these changes as well as phasing
requirements proposed by the Developer, the City Staff and City
Attorney determined that an entirely new Developer's Agreement was
the most practical means to accurately reflect the revised
conditions under which the project could develop.
Lake Bennet Centre Developer 's Agreement
March 29, 1995
Page 2
DISCUSSION:
The major provisions of the proposed Lake Bennet Centre Developer's
Agreement as related to the PSP are summarized as follows :
o A detailed phasing plan is identified and correlated with
definitions of various improvements to be constructed
within each phase.
o Phase 1A provides for the paving of Blackwood Avenue 780 '
north of S.R. 50 , improvements to the existing traffic
signal at S.R. 50 , and the paving of internal roadways
within the project .
o Phase 1B includes the connection of a single right-in/
right-out entry onto S.R. 50 and the construction of a
median separator.
o Phase 2 provides for the paving of Maine Street over to
the western boundary of the project .
o Rights-of-way for S.R. 50 , Blackwood Avenue and Maine
Street will be dedicated to the City upon 90 days written
notice or at platting.
o The Tract "A" lift station site, to be conveyed to the
City, is proposed to be relocated to a parcel north-east
of Blackwood Avenue.
o The Tract "B" retention pond and conservation area which
accommodates the roadway drainage from Blackwood Avenue
and Maine Street will be dedicated to the City.
o The provisions within the original Agreement pertaining
to impact fee credits for the paving of Blackwood Avenue
(California) and Maine Street have been clarified.
o Water main extension pay-back provisions have been
clarified.
o Setbacks from Lake Bennet and Maine Street are specified
per the PSP, and landscape buffers along Lake Bennet may
be constructed at the time of individual lot development .
Lake Bennet Centre Developer 's Agreement
March 29, 1995
Page 3
o Lot 8 would be incorporated within Phase One and could be
split to form another lot (Lot 9) .
o Various concurrency provisions are included to
acknowledge the purchase of a Transportation Capacity
Reservation Certificate by the developer without
guarantee of a Final Certificate of Concurrency for
individual lots .
o The developer would be permitted to submit Final
Subdivision Plans for the entire development and could
plat the entire project ahead of issuance of a Final
Certificate of Concurrency since individual Certificates
will be issued at Final Site Plan approval for each lot
within the development .
STAFF RECOMMENDATION:
Staff respectfully recommends that the Honorable Mayor and City
Commissioners approve the new Lake Bennet Centre Developer 's
Agreement by and between ZOM LAKE BENNET, LTD. and the CITY OF
OCOEE and authorize the Mayor and City Clerk to execute the
Agreement on behalf of the City.
RBW/emk
Attachment
cc: Project File #93-010
LAKE BENNET CENTRE
• DEVELOPER' S AGREEMENT
DEVELOPER'S AGREEMENT, made this 1CA. . day of August, 1986 ,
by and between MILTON W. DEARISO and MARJORIE DEARISO ( jointly
hereafter referred to as "Owner" ) and the CITY OF OCOEE, a munic-
ipal corporation existing under the laws of the State of Florida
(hereinafter called the "City" ) .
W I T N E S S E T H:
WHEREAS, Owner is the record titleholder of approximately
35 .71 acres of land lying in the City of Ocoee east of Lake
Bennet and adjacent to the north side of State Road 50 , said
property 'being more particularly described in the attached
Exhibit "A" ( the "Property" ) ; and
WHEREAS, by City ordinance #864 , dated the 7th day of
January, 1986, the City did annex the Property into the City
limits of Ocoee; and
WHEREAS, the City is presently contemplating the amendment
of its Comprehensive Plan to designate the use of the Property
for commercial purposes and to amend its zoning ordinance con-
sistent with such land use designation; and
WHEREAS, as a condition to such Comprehensive Plan amendment
and rezoning, the parties have agreed to certain terms and condi-
• tions that will assist in regulating the development and use of
the Property for the mutual benefit of the parties , adjacent
landowners and the community in general .
NOW THEREFORE, in consideration of the premises and as a
condition to the amendment of the City Comprehensive Land Plan
and rezoning of the Property to C-2 , Community Commercial
District, the parties agree as follows :
1. The Owner shall submit a subdivision plat of the
Property dedicating to the City thirty feet ( 30 ' ) for road right-
of-way along the north side of the Property and thirty-five feet
(35 ' ) for road right-of-way along the east side of the
Property. Such dedication shall be at the sole cost of the Owner
and shall be documented by warranty deed to the City in form and
substance satisfactory to the City and its attorney. In addition,
Owner shall provide the City with a title opinion or a title
insurance policy evidencing the unencumbered ownership of such
right-of-way.
2. Prior to or contemporaneously with the issuance by the
City of building permits on the Property having a cumulative
square footage of 20 , 000 sq./ft . or more:
(A) The Owner shall improve California Avenue along
the Property 's east boundary line and Maine Street along the
north boundary line to two lane paved roads in accordance with •
standards of the City. When and if building permits are issued
by the City for land (other than the Property) fronting on either
California Avenue or Maine Street, the City shall reimburse to
Owner that portion of Owner ' s construction cost in improving
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.
California Avenue and Maine Street calculated as follows : the
portion to be reimbursed to Owner shall be fifty percent ( 50% ) of
Owner 's total construction cost. (as evidenced by its completed
road construction contracts for both California Avenue and Maine
Street) multiplied by a ratio, the numerator of which shall be
the number of front feet on California Avenue or Maine Street in
the land parcel for which a building permit is being issued and
the denominator of which shall be the total number of front feet
of land fronting on California Avenue and Maine Street across
from the Property. The City ' s reimbursement obligation to Owner
hereunder shall apply for a term of five ( 5 ) years from the date
said road construction improvements are completed.
In the event the City adopts a citywide transportation
• impact fee ordinance, the Owner shall be entitled to a credit
against any, road impact fees otherwise required under such ordi-
nance for an amount equal to fifty percent ( 50% ) of the cost of
constructing the road improvements to Maine Street and California
Avenue required hereunder ( exclusive, however, of the cost of
improvements to California Avenue' within 100 feet of its
intersection with Highway 50 ) .
(B) The Owner shall contribute twenty-five percent
( 25% ) of the cost of signalization of the proposed intersection •
of State Road 50 and California Avenue at such time as a warrant
is issued by the Florida Department of Transportation.
3 . If required by the Owner for development of the Prop-
erty, Owner shall pay the full initial the cost of extending a
- 3 -
water line easterly along the northerly right-of-way of Highway
50 to the boundary of the Property in a size adequate to service
the projected development and future system expansion as speci-
fied by the City. To the extent it is reasonably within the
control of the City, City shall cooperate in attempting to reim-
burse to Owner a portion of its cost from connection fees or
other assessments levied upon other landowners and developers who
may benefit from the extended water line within five ( 5) years
from the date of such extension. The intent of the parties as
evidenced in this paragraph shall be the subject of a further
water line extension and reimbursement agreement to be mutually
agreed upon by the parties .
4 . All buildings on the Property shall be set back from
the north boundary of the Property and the normal high water line
of Lake Bennet a minimum of one hundred feet ( 100 ' ) .
• 5 . Prior to the issuance of any certificate of occupancy
for improvements on the Property, the Owner shall complete, to
the City's satisfaction, an irrigated professionally designed
landscaped buffer-bordering the north property line and the Lake
Bennet shoreline . Said buffer shall be at least seventy-five
feet (75 ' ) in depth and shall be comprised of existing vegetation
and supplemented with vegetation and berming to enhance the natu- .
ral beauty of the area. Water retention and detention facilities
may be located within said buffer areas as approved by the City
engineer .
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•
6_ Development of Lake Bennet Centre , including site
plans , building set-backs (other than as stated in paragraph 3 ) ,
building plans and other permits or approvals shall be in compli-
ance with all City and State ordinances and regulations and shall
be reviewed with specific attention to the following issues :
(A) In addition to access from the Property to Maine
Street and California Avenue, Owner shall have only two ( 2 )
entrances from the Property directly to State Road 50 .
(B) Owner shall make every reasonable effort to pre-
serve the existing oak hammock in the northwest corner of
the Property and incorporate it into the landscaped buffer
area.
This Agreement shall be binding upon the Owner , its successors
and assigns as owners of all or any portion of the Property. The
terms , conditions and restrictions contained herein shall be
specifically enforceable by the successors or assigns of the
Owner or by the City of Ocoee.
7 . This Agreement shall be recorded in the Public Records
- of Orange County, Florida at Owner ' s expense and shall constitute
a covenant running with the land. However , nothing contained
herein shall limit the right of the City to prescribe other con-
ditions on the development in accordance with applicable City .
ordinances and land regulations in effect at the time of develop-
ment .
8 . Upon satisfaction of the conditions set forth herein,
the City shall , upon request by Owner or its successors , execute
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•
a document in recordable form acknowledging the completion and/or
satisfaction of the conditions contained herein. Recording of
such a document in the Public 'Records of Orange County shall
serve to cancel and terminate of record this Agreement, which
shall thereafter be of no further force or effect . Unless so
cancelled, this Agreement shall be perpetual in duration .
9 . This Agreement and provisions contained herein shall be
controlled and interpreted in accordance with the laws of the
State of Florida.
IN WITNESS WHEREOF, . the Owner has executed this Agreement
for the purposes stated herein on the day and year first above
written.
OWNER:
e
f � ,
MILTON . DEARISO
//71A / 01.12.-e
MARJRIE DEARISO
•
CITY OF EE •
„vet%) 44%,
STATE OF FLORIDA
COUNTY OF ) S . S . :
The regoing instrument was acknowledged before me this ltf�
day of LLQ L�� , 1986, by MILTON W. DEARISO and MARJORIE
IE
CQc Loak .
NOTARY PUBLIC
My commission expires :
Notary Public State of Florida of Cara!
My Con rnissian expires April 25, 1989
• — 6 -
STATE OF FLORIDA )
S.S. . _ _._....
COUNTY OF )
Th- oregain• instrument was acknowledged before me this 0day of V , 1986 , by
•
l.01 tak t,0
NO ARY PUBLIC
My commission expires :
Notary Public State of Florida at Carie ,
M, CJmmission expires April 25, 1989,
5740JGW-5H - 7
THIS INSTRUMENT PREPARED BY:
Steven W. Zelkowitz, Esq.
Assistant City Attorney
FOLEY &LARDNER
111 North Orange Avenue, Suite 1800
Post Office Box 2193
Orlando, FL 32802-2193
(407)423-7656
PLEASE RETURN TO:
Jean Grafton, City Clerk
City of Ocoee
150 N. Lakeshore Drive For Recording Purposes Only
Ocoee, Florida 34761
LAKE BENNET CENTRE
DEVELOPER'S AGREEMENT
THIS LAKE BENNET CENTRE DEVELOPER'S AGREEMENT(this "Agreement")
is made and entered into as of the day of , 1995 by and between ZOM
LAKE BENNET, LTD., a Florida limited partnership, whose mailing address is 2269 Lee
Road, Suite 101, Winter Park, Florida 32789, (hereinafter referred to as the "Owner") and the
CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North
Lakeshore Drive, Ocoee, Florida 34761 (hereinafter referred to as the "City").
WITNESSETH:
WHEREAS, the Owner owns fee simple title to certain lands located in Orange County,
Florida and within the corporate limits of the City of Ocoee located east of Lake Bennet and
adjacent to the north side of State Road 50, said lands being more particularly described in
Exhibit "A" attached hereto and by this reference made a part hereof (hereinafter referred to as
the "Property"); and
WHEREAS, the City and the Owner's predecessor-in-title to the Property entered into
that certain unrecorded Lake Bennet Centre Developer's Agreement dated August 19, 1986 (the
"Existing Lake Bennet Centre Developer's Agreement"); and
WHEREAS, on November 1, 1994, the City Commission of the City of Ocoee, Florida
(the "City Commission") approved the Preliminary Subdivision Plan (as defined below) for the
Property; and
WHEREAS, Condition of Approval No. 11 of the Preliminary Subdivision Plan requires
the amendment of the Existing Lake Bennet Centre Developer's Agreement to (i) evidence the
proposed amendments thereto as shown on Sheet 5 of the Preliminary Subdivision Plan, (ii)
include all other requirements specified by the City Attorney to ensure proper legal form, and
(iii) incorporate the Conditions of Approval as shown on Sheet 5 of the Preliminary Subdivision
Plan; and
WHEREAS, the Owner and the City desire to terminate, rescind and repeal in its
entirety the Existing Lake Bennet Centre Developer's Agreement; and
WHEREAS, the Owner and the City desire to execute this Agreement in order to comply
with the requirements of Condition of Approval No. 11 of the Preliminary Subdivision Plan and
the Ocoee Land Development Code.
NOW, THEREFORE, in consideration of the premises and other good and valuable
considerations exchanged between the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Recitals. The above recitals are true and correct and are incorporated
herein by this reference.
Section 2. Definitions.
A. "Preliminary Subdivision Plan" shall mean and refer to
the Preliminary Subdivision Plan for Lake Bennet, Sheets 1
through 5, inclusive,prepared by Hollis Engineering, Incorporated
and signed and sealed by Phillip C. Hollis, P.E. under date of
October 19, 1994, as approved by the City Commission on
November 1, 1994.
B. "Phase 1A" shall mean and refer to Lots 1, 2, 5, 6, and 8
of the Property as shown on the Preliminary Subdivision Plan.
C. "Phase 1W' shall mean and refer to Lots 3 and 4 of the
Property as shown on the Preliminary Subdivision Plan.
D. "Phase 2" shall mean and refer to Lot 7 of the Property as
shown on the Preliminary Subdivision Plan.
E. "Phase lA Improvements" shall mean and refer to the
roadway improvements shown on the Preliminary Subdivision Plan
for Blackwood Avenue for a distance of approximately seven
hundred eighty feet (780') to the north of said intersection
including traffic signal modifications at the intersection thereof
with State Road 50, together with Streets A and B as shown on the
Preliminary Subdivision Plan, and any improvements to State Road
50 required to permit the connection and extension of Blackwood
Avenue which are shown on the Preliminary Subdivision Plan as
well as all stormwater management, utility and other infrastructure
improvements as shown on the Preliminary Subdivision Plan or
otherwise required by the Ocoee Land Development Code
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necessary for the development of Phase 1A including, but not
limited to the construction of a portion of the Water Line (as
defined below) pursuant to the terms of Section 6(F) hereof
excluding, however, any improvements set forth in the definition
of the Phase 1B Improvements as defined in Section 2(F) hereof.
F. "Phase 1B Improvements" shall mean and refer to the
roadway improvements which are necessary to physically connect
Street B with State Road 50, and the improvements and
modifications to State Road 50 which would be required for the
connection of Street B with State Road 50 including a median
separator as required by the Florida Department of Transportation
as well as all stormwater management, utility and other
infrastructure improvements as shown on the Preliminary
Subdivision Plan or otherwise required by the Ocoee Land
Development Code necessary for the development of Phase 1B.
G. "Phase 2 Improvements" shall mean and refer to the
remainder of the roadway improvements to Blackwood Avenue
from the end of the portion of Blackwood Avenue which is within
the Phase lA Improvements as shown on the Preliminary
Subdivision Plan, as well as the roadway improvements to Maine
Street as shown on the Preliminary Subdivision Plan as well as all
stormwater management, utility and other infrastructure
improvements as shown on the Preliminary Subdivision Plan or
otherwise required by the Ocoee Land Development Code
necessary for the development of Phase 2 including, but not
limited to the construction of a portion of the Water Line pursuant
to the provisions of Section 6(F) hereof.
H. "Water Line" shall mean that certain twelve inch (12")
water line extending from State Road 50 northerly along Street B
to Maine Street and as more particularly described in Section 6(F).
Section 3. Repeal of Existing Lake Bennet Centre Developer's Agreement. The
Existing Lake Bennet Centre Developer's Agreement as it relates to the Property is hereby
terminated, rescinded and repealed in its entirety.
Section 4. Development of the Property.
A. Except as may otherwise be set forth in this Agreement, the Owner hereby
agrees to develop the Property in accordance with the Preliminary Subdivision Plan and the Final
Subdivision Plan which shall incorporate revisions to the Preliminary Subdivision Plan as
required by this Agreement.
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B. The Owner hereby agrees that the Property shall be developed in
accordance with and is made subject to those certain Conditions of Approval attached hereto as
Exhibit "B" and by this reference made a part hereof (the "Conditions of Approval"). Except
as otherwise set forth herein, the Owner further agrees to comply with all of the terms and
provisions of the Conditions of Approval. The Conditions of Approval attached hereto as
Exhibit "B" are the same Conditions of Approval set forth on Sheet 5 of the Preliminary
Subdivision Plan. Notwithstanding the foregoing, in the event of any conflict between this
Agreement and the Conditions of Approval, it is agreed that this Agreement shall prevail and
control and shall supersede the conflicting Condition of Approval.
Section 5. Right-of-Way. Lift Station and Stormwater Retention Pond
Dedications. Upon the earlier of(a) the platting of any Phase of the Property or (b) ninety (90)
days written notice from the City, the Owner shall convey and dedicate to the City (i) thirty feet
(30') for road right-of-way along the north side of the Property adjacent to Maine Street (if
necessary to create a sixty foot (60') right-of-way for Maine Street; (ii) forty-five feet (45') for
road right-of-way along the east side of the Property; provided, however, that notwithstanding
the foregoing, the road right-of-way to be dedicated by the Owner along the east side of the
Property shall taper from forty-five feet (45') at a point five hundred and twenty feet (520')
north of the existing northerly right-of-way line of State Road 50 to a width of fifty-five feet
(55') at said northerly right-of-way line of State Road 50; (iii) twenty-five (25') for road right-
of-way along the south side of the Property adjacent to State Road 50; and (iv) Tract "A" (Lift
Station Site) and Tract "B" (Stormwater Retention Pond) as shown on the Preliminary
Subdivision Plan or as modified in accordance with Section 11 herein. Such dedication shall be
at the sole cost of the Owner and shall be documented by a warranty deed to the City in form
and substance satisfactory to the City;provided, however, with regard to the dedication set forth
in subparagraph (i) hereof, in the event such right-of-way has been previously dedicated to the
public, the Owner shall provide a quit claim deed for such road right-of-way and a title opinion
that such land has been dedicated as a public right-of-way. In addition, the Owner shall provide
the City with a title opinion or a title insurance policy evidencing the unencumbered ownership
of such lands or the appropriate releases. Neither the Owner nor any person or entity shall be
entitled to any road impact fee credits or other compensation with respect to the conveyance to
the City of the road right-of-way, Tract "A" (Lift Station Site) and Tract "B" (Stormwater
Retention Pond) as set forth above.
Section 6. Construction of Improvements: Road Impact Fee Credits.
A. Prior to the issuance of any building permit for any portion of the
Property, the Owner shall be required to construct, install and complete a stabilized road bed
in accordance with the standards and requirements of the City and receive all applicable permit
approvals from the Florida Department of Environmental Protection, the St. Johns River Water
Management District, and/or the Florida Department of Transportation for the Phase lA
Improvements; provided, however, that no certificate of occupancy shall be issued pursuant to
such building permit until the Phase lA Improvements are completed and accepted by the City
4
and a Certificate of Completion issued in accordance with the requirements of the Land
Development Code.
B. Prior to the issuance of any building permit for Lot 3 or Lot 4, the Owner
shall be required to construct, install and complete a stabilized road bed in accordance with the
standards and requirements of the City and receive all applicable permit approvals from the
Florida Department of Environmental Protection, the St. Johns River Water Management
District, and/or the Florida Department of Transportation for the Phase 1B Improvements;
provided, however, that no certificate of occupancy shall be issued pursuant to such building
permit until the Phase 1B Improvements are completed and accepted by the City and a
Certificate of Completion issued in accordance with the requirements of the Land Development
Code.
C. Prior to the issuance of any building permit for Lot 7, the Owner shall be
required to construct, install and complete a stabilized road bed in accordance with the standards
and requirements of the City and receive all applicable permit approvals from the Florida
Department of Environmental Protection, and/or the St. Johns River Water Management District
for the Phase 2 Improvements; provided, however, that no certificate of occupancy shall be
issued pursuant to such building permit until the Phase 2 Improvements are completed and
accepted by the City and a Certificate of Completion issued in accordance with the requirements
of the Land Development Code.
D. In consideration of Owner's performance of its obligations set forth in
Section 6(A) through (C), inclusive, the Owner shall be entitled to a credit against road impact
fees required under Chapter 87 of the Code of Ordinances of the City of Ocoee (the "Road
Impact Fee Ordinance") with regard to the Property in an amount equal to fifty percent (50%)
of the Owner's total actual construction costs (including reasonable design, permitting and
engineering costs) for the completed (and accepted by the City) Phase lA and 1B roadway
improvements (excluding however, the roadway improvements to Streets A and B or the
•
roadway improvements to Blackwood Avenue within one hundred feet (100') of State Road 50
or roadway improvements to State Road 50 itself) and the completed (and accepted by the City)
Phase 2 roadway improvements, provided, however, that the total road impact fee credits
granted hereunder shall not exceed the amount of the road impact fees assessed against the
Property pursuant to the Road Impact Fee Ordinance. The Owner shall submit to the City's
Development Review Committee("DRC") satisfactory documentation to support any road impact
fee credits pursuant to this Section, and the actual amount of the road impact fee credit shall
thereafter be determined by the DRC based upon a review of such satisfactory documentation
in the manner provided by the Road Impact Fee Ordinance. Such road impact fee credits shall
be awarded to ZOM Lake Bennet, Ltd. and not to any subsequent owner of the Property or any
portion thereof unless or until ZOM Lake Bennet, Ltd. shall have assigned its right to all or a
portion of such road impact fee credits to successor owner(s) of the Property.
E. The Owner shall contribute the greater of (i) twenty-five percent (25%)
of the cost of the existing signalization at the intersection of State Road 50 and Blackwood
5
Avenue or (ii) one hundred percent (100%) of the cost of the modification of the signalization
as the warrant therefore may be issued by the Florida Department of Transportation. Said
contribution shall be determined by the City and shall be paid to the City by the Owner prior
to or at the time of platting of any Phase of the Property.
F. In connection with the development of the Property, the Owner shall pay
the full initial cost of the construction, installation and completion of a twelve inch (12") water
line from State Road 50 northerly along Street B and extending north to Maine Street (the
"Water Line"). The portion of the Water Line extending from State Road 50 northerly along
Street B and terminating at the southern boundary line of Lot 6 shall be constructed, installed
and completed contemporaneously with the Phase 1A Improvements. The portion of the Water
Line extending from the southern boundary line of Lot 6 northerly to Maine Street shall be
constructed, installed and completed contemporaneously with the Phase 2 Improvements.
G. The Owner shall provide the City with computer generated fire flow
modeling in a form acceptable to the City regarding the sizing of the Water Line. In the event
such fire flow modeling indicates that the size of the Water Line necessary to provide adequate
water service to the Property is less than twelve inches (12"), the City shall reimburse the
Owner for the actual cost of upgrading the size of the Water Line from the size indicated by the
fire flow modeling to twelve inches (12"); provided, however, that in the event the fire flow
modeling indicates a size less than eight inches (8"), the City shall only be required to reimburse
the Owner for the upgrading of the size of the Water Line from eight inches (8") to twelve
inches (12"). Such reimbursement shall be made by the City to Owner following the submission
of documentation in a form acceptable to the City. Such documentation shall include, but not
be limited to, (1) a contractor's bid for the Water Line based upon the size indicated by the fire
flow modeling (and in the event the fire flow modeling indicates a size less than eight inches
(8"), a contractor's bid for an eight inch (8") Water Line) and (2) evidence of the actual cost
of construction of the twelve inch (12") Water Line.The amount of such reimbursement shall
be determined by the City based upon said documentation subject to verification and acceptance
thereof by the City.
Section 7. Setback from Lake Bennet. All buildings on the Property shall be set
back from the normal high water line of Lake Bennet a minimum of one hundred feet (100').
Section 8. Landscape Buffer. Prior to the issuance of any certificate of occupancy
for Lots 4, 5, or 6 as shown on the Preliminary Subdivision Plan, the Owner shall complete,
to the City's satisfaction, an irrigated professionally designed landscaped buffer bordering the
Lake Bennet shoreline. Said buffer shall be at least seventy-five feet (75') in depth and shall
be comprised of existing vegetation and supplemented with vegetation and berming to enhance
the natural beauty of the area. Said buffer may, at the Owner's option, be completed on a Lot
by Lot basis contemporaneous with the individual development of Lots 4, 5 or 6. Water
retention and detention facilities may be located within said buffer areas as approved by the City
Engineer and in accordance with the requirements of the Ocoee Land Development Code. The
only setbacks or buffers which shall be applicable to or required with regard to the north
6
boundary of Lots 6 and 8 as shown on the Preliminary Subdivision Plan shall be those which
are required by the Ocoee Land Development Code; provided, however, that in the event Lot
6 is developed and used as a nursing home (and related and ancillary uses thereto), the setbacks
and landscaped buffer applicable to the north boundary of Lot 6 shall only be twenty-five feet
(25').
Section 9. Access from State Road 50: Oak Hammock. Development of the
Property, including site plans, building set-backs (other than as stated in Sections 7 and 8),
building plans and other permits or approvals shall be in compliance with all City and State
statutes, ordinances and regulations and shall be reviewed with specific attention to the following
issues:
A. In addition to access from the Property to Maine Street and Blackwood
Avenue, Owner shall have only one (1) right in/right out entrance from the Property
directly to State Road 50 and such shall be the only ingress/egress point from the
Property directly to State Road 50. In this regard, the Final Subdivision Plan for the
Property to be submitted to the City shall delete the entrance from the Property to State
Road 50 between Lots 1 and 2 as shown on the Preliminary Subdivision Plan.
B. The Owner shall preserve the existing Oak Hammock in the westerly
portion of Lot 6 as shown on the Preliminary Subdivision Plan, and incorporate it into
the landscaped buffer area required by Section 8 above. A conservation easement, in a
form and substance acceptable to the City, over said Oak Hammock area shall be granted
to the City in accordance with Section 7-6 of the Ocoee Land Development Code and
Section 704.06, Florida Statutes, and shall be recorded in the Public Records of Orange
County, Florida at the time of the recording of the Phase lA plat, and said conservation
easement shall be shown on said Phase lA plat. The Oak Hammock area shall be
maintained in accordance with the terms of the conservation easement by the owner of
Lot 6.
Section 10. Subdivision of Lot 8. Notwithstanding anything contained in the
Preliminary Subdivision Plan to the contrary, the Owner shall be permitted to subdivide Lot 8,
as shown on the Preliminary Subdivision Plan, into two (2) lots, which shall then be known as
Lot 8 and Lot 9, so long as such subdivision is shown on the plat of Phase lA submitted to the
City for approval, and so long as both of said Lots meet all of the standards and requirements
of the City and the standards and requirements of this Agreement which are otherwise applicable
to Lot 8. Both Lot 8 and Lot 9 shall be within Phase 1A, notwithstanding anything contained
in the Preliminary Subdivision Plan to the contrary. The Owner agrees that there shall be no
access from either Lot 8 and/or Lot 9 to Blackwood Avenue and/or Maine Street in Phase lA
and Phase 1B.
Section 11. Lift Station Site. The Final Subdivision Plan for the Property to be
submitted to the City shall reflect the relocation of Tract "A" ("Lift Station Site") from its
7
existing location north of State Road 50 and west of Street B to a location near Blackwood
Avenue as determined by the parties.
Section 12. Water Line Connection Surcharge.
A. Reference is hereby made to that certain Construction Agreement between
the City and West 50 Water Line, Inc., dated July 31, 1989 and recorded August 1, 1989
in Official Records Book 4102, Page 336 of the Public Records of Orange County,
Florida (the "Construction Agreement"). By this reference the Construction Agreement
is hereby incorporated into this Agreement as if fully set forth herein.
B. Pursuant to Section 3 of the Construction Agreement, at the time Owner
contracts for potable water capacity with the City, Owner shall be deemed a User (as
defined in the Construction Agreement) based upon Owner's use of water capacity which
will utilize the Transmission Facilities (as defined in the Construction Agreement) and/or
any water main connected to the Transmission Facilities.
C. Pursuant to Section 3(B) of the Construction Agreement, at the time
Owner (a) contracts for potable water capacity with the City for the Property or any
portion thereof, or (b) Owner submits an application for a building permit for the
Property or any portion thereof, whichever occurs first, Owner shall (i) provide the City
with an estimate of the water capacity for the Property and (ii) pay to the City a
surcharge for the estimated water capacity necessary to serve the Property based upon
its Fair Hydraulic Share (as defined in the Construction Agreement). The amount of the
surcharge shall be determined by multiplying the Project Costs in the amount of
$496,952.04 by the quotient obtained by dividing the average daily flow of the estimated
water capacity for the Property by the total capacity of the Transmission Facilities.
Owner acknowledges and agrees that 1,400,000 GPD will be used as the capacity of the
Transmission Facilities for the purposes of this Agreement. In the event the actual water
capacity for the Property is greater than the estimated water capacity, the Owner shall
be required to pay to the City any additional surcharge based upon the difference between
the estimated water capacity and the actual water capacity. The payment by the Owner
of the surcharge based upon the estimated water capacity for the Property shall not be
construed as a representation of guaranty by the City that capacity will be available at
the time of contracting for potable water capacity or application for a building permit for
any Lot.
Section 13. Compliance with Concurrency: Final Site Plan Approval.
A. Nothing contained in this Agreement shall be construed to exempt the
Owner from complying with the provisions of Article IX of the Land Development Code.
This Agreement does not constitute a final development order or authorize the Owner to
obtain any development permits or to commence any development on the Property.
8
B. Approval of the Final Subdivision Plan or a plat of any Phase of the
Property or any Lot shall not grant Owner any entitlement to obtain a Final Certificate
of Concurrency. Prior to obtaining a building permit for any Lot, the Owner shall be
required to obtain a Final Certificate of Concurrency for such Lot pursuant to the
provisions of Article IX of the Land Development Code. The approval of any Final
Subdivision Plan or the platting of any Phase of the Property or any Lot shall not be
construed as a representation or guaranty by the City that capacity will be available for
the issuance of a Final Certificate of Concurrency at the time of application for a
building permit for any Lot. The Owner acknowledges and agrees that it is proceeding
at its own risk and expense in seeking to obtain approval of the Final Subdivision Plan
and/or in the platting of any Phase of the Property or any Lot and that the Owner shall
not be entitled to a Final Certificate of Concurrency by virtue of such undertakings.
C. Prior to the effective date of this Agreement the City has issued
Transportation Capacity Reservation Certificate No. 8-TCRC-95 ("the TCRC") to the
Owner, said TCRC being incorporated herein by reference in the same manner as if fully
set forth herein. In connection therewith, the Owner has paid to the City a
Transportation Capacity Reservation Fee in the amount of$152,469.20, said fee having
been paid in accordance with and subject to the provisions of Section 9-7 of Article IX
of the Ocoee Land Development Code. The TCRC has reserved the transportation
capacity set forth therein for proposed Lots 1, 3, 4, 6 and 8 as set forth in the
Preliminary Subdivision Plan and the City does hereby confirm such transportation
capacity reservation. The Owner has elected to obtain the TCRC based upon the
Preliminary Subdivision Plan without first obtaining a Final Certificate of Concurrency
for said proposed lots or any portion of the Property. Issuance by the City of the TCRC
shall not be construed as a representation or guaranty by the City that capacity will be
available for sanitary sewer, potable water, solid waste or stormwater drainage at the
time the Owner applies for a Final Certificate of Concurrency. Owner acknowledges and
agrees that: (i) it is proceeding at its own risk and expense in obtaining the TCRC prior
to the issuance of a Final Certificate of Concurrency, (ii) the issuance by the City of the
TCRC does not grant any entitlement to a Final Certificate of Concurrency, and (iii) in
the event a Final Certificate of Concurrency cannot be obtained by the Owner at the time
of application, then the Transportation Capacity Reservation Fee is subject to forfeiture
pursuant to the provisions of Section 9-7 of Article IX of the Ocoee Land Development
Code.
D. The City hereby confirms and agrees that, pursuant to the provisions of
Article IX of the Ocoee Land Development Code, the Owner may obtain approval of a
Final Subdivision Plan for the Property and proceed to plat all or a portion of the
Property pursuant to such approval subject to the condition that no building permit will
be issued for the construction of any building or other structure on any Lot until a
Preliminary Site Plan and Final Site Plan have been approved by the City for the Lot
which is the subject of the building permit application. The Owner further acknowledges
and agrees that it shall not be entitled to obtain approval of a Final Site Plan for any Lot
9
unless and until the Owner has obtained a Final Certificate of Concurrency with respect
to the Lot for which Final Site Plan approval is sought. The construction by the Owner
of infrastructure in accordance with an approved Final Subdivision Plan, the platting of
all or a portion of the Property, and the obtaining of the TCRC shall not be construed
to grant entitlement to approval of Final Site Plans for Lots within the Property and the
Owner acknowledges and agrees that it is proceeding at its own risk and expense in this
regard. Unless and until water and sewer capacity necessary to serve the Property is
purchased by the Owner from the City, the Owner shall be prohibited from obtaining any
permits from the Florida Department of Environmental Protection except for a Zero FRU
or Zero Average Daily Flow Water Extension Permit with respect to water capacity and
a Dry Line Permit with respect to sewer capacity.
Section 14. Notice. Any notice delivered with respect to this Agreement shall be in
writing and be deemed to be delivered(whether or not actually received) when(i) hand delivered
to the person hereinafter designated, or (ii) upon receipt of such notice when deposited in the
United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the
person at the mailing address set forth on the first page of this Agreement, or such other address
or to such other person as the party shall have specified by written notice to the other party
delivered in accordance herewith.
Section 15. Covenant Running with the Land. This Agreement shall run with the
Property and inure to and be for the benefit of the parties hereto and their respective successors
and assigns and any person, firm, corporation, or entity who may become the successor in
interest to the Property or any portion thereof.
Section 16. Recordation of Agreement. The parties hereto agree that an executed
original of this Agreement shall be recorded by the City, at the Owner's expense, in the Public
Records of Orange County, Florida. The City will, from time to time upon request of the
Owner, execute and deliver letters affirming the status of this Agreement.
Section 17. Applicable Law. This Agreement and the provisions contained herein
shall be construed, controlled and interpreted according to the laws of the State of Florida.
Section 18. Time of the Essence. Time is hereby declared of the essence to the lawful
performance of the duties and obligations contained in this Agreement.
Section 19. Agreement: Amendment. This Agreement constitutes the entire
agreement between the parties, and supersedes all previous discussions, understandings and
agreements, with respect to the subject matter hereof. Amendments to and waivers of the
provisions of this Agreement shall be made by the parties only in writing by formal amendment.
Section 20. Further Documentation. The parties agree that at any time following a
request therefor by the other party, each shall execute and deliver to the other party such further
10
documents and instruments, in form and substance reasonably necessary to confirm and/or
effectuate the obligations of either party hereunder.
Section 21. Specific Performance. Both the City and the Owner shall have the right
to enforce the terms and conditions of this Agreement by an action for specific performance.
Section 22. Attorneys' Fees. In the event that either party fmds it necessary to
commence an action against the other party to enforce any provision of this Agreement or
because of a breach by the other party of any terms hereof, the prevailing party shall be entitled
to recover from the other party its reasonable attorneys' fees, legal assistants' fees and costs
incurred in connection therewith, at both trial and appellate levels, including bankruptcy
proceedings, without regard to whether any legal proceedings are commenced or whether or not
such action is prosecuted to judgment.
Section 23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
Section 24. Captions. Captions of the Sections and Subsections of this Agreement are
for convenience and reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions
of this Agreement.
Section 25. Severability. If any sentence, phrase, paragraph, provision or portion of
this Agreement is for any reason held invalid or unconstitutional by any court of competent
jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such
holding shall not affect the validity of the remaining portion hereof.
Section 26. Effective Date. The Effective Date of this Agreement shall be the date
that this Agreement is last executed by a party hereto.
11
IN WITNESS WHEREOF, the Owner, and the City have caused this instrument to be
executed by their duly authorized officers as of the day and year first above written.
OWNER:
ZOM LAKE BENNET, LID.,
a Florida limited partnership
Signed, sealed and delivered By: ZOM PROPERTIES, INC.,
in the presence of: a Florida corporation, its sole
general partner
By:
Name:
Print Name: Title:
(CORPORATE SEAL)
Print Name:
CITY:
CITY OF OCOEE, FLORIDA
By:
S. Scott Vandergrift, Mayor
Print Name:
Attest:
Jean Grafton, City Clerk
Print Name: (SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING
Approved as to form and legality HELD ON , 1995
this _ day of , 1995. UNDER AGENDA ITEM NO. .
FOLEY & LARDNER
By:
City Attorney
12
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State and County aforesaid to take acknowledgments, personally appeared
as of ZOM PROPERTIES,
INC., a Florida corporation, as sole general partner of ZOM LAKE BENNET, LTD., a
Florida limited partnership, and who [ J is personally known to me or [] produced
as identification, and that he acknowledged executing the
same in the presence of two subscribing witnesses, on behalf of said corporation and partnership,
freely and voluntarily, for the uses and purposes therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this
day of , 1995.
Signature of Notary
Name of Notary (Typed, Printed or Stamped)
Commission Number(if not legible on seal):
My Commission Expires(if not legible on seal):
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State and County aforesaid to take acknowledgments, personally appeared S. SCOTT
VANDERGRIFT and JEAN GRAFrON, personally known to me to be the Mayor and City
Clerk, respectively, of the CITY OF OCOEE,FLORIDA and that they severally acknowledged
executing the same in the presence of two subscribing witnesses, freely and voluntarily under
authority duly vested in them by said municipality.
WITNESS my hand and official seal in the County and State last aforesaid this
day of , 1995.
•
Signature of Notary
Name of Notary (Typed, Printed or Stamped)
Commission Number(if not legible on seal):
My Commission Expires(if not legible on seal):
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Certain lands located in Orange County, Florida more particularly described as
follows:
Commence at the South 1/4 corner of Section 20, Township 22
South, Range 28 East in the City of Ocoee, Orange County,
Florida; thence run N 00° 16' 09" E along the West line of the
Southeast 1/4 of said Section 20 a distance of 160.00 feet to the
POINT OF BEGINNING of this description; thence continue to
run N 00 ° 16' 09" E along said West line of the Southeast 1/4 a
distance of 1021.90 feet; thence run S 67° 50' 07" E a distance of
90.48 feet; thence run S 86° 09' 29" E a distance of 123.81 feet;
thence run N 00° 30' 00" E a distance of 184.59 feet to a point on
the Southerly right of way line of Maine Street; thence run S 89°
18' 55" E along said Southerly right of way line and parallel with
the North line of the Southwest 1/4 of the Southeast 1/4 of said
section 20 a distance of 1121.48 feet to a point on the East line of
the Southwest 1/4 of the Southeast 1/4 of said Section 20; thence
run S 00° 21' 46" W along the East line of the Southwest 1/4 of
the Southeast 1/4 of said Section 20 a distance of 1251.33 feet to
a point on the Northerly right of way line of State Road 50; thence
run N 89° 27' 13" W along said Northerly right of way line a
distance of 1292.69 feet; thence run N 00° 16' 09" E a distance
of.88.18 feet; thence run N 89° 43' 51" W a distance of 35.00
feet to the POINT OF BEGINNING of this description.
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EXHIBIT "B"
CONDITIONS OF APPROVAL
1) Prior to the approval of a Final Site Plan for each Lot, or portion thereof, the
Applicant/Owner will need to apply for and obtain Final Certificate of Concurrency
pursuant to Article IX of the Ocoee Land Development Code for such Lot for which
Final Site Plan approval is requested. Neither the review of the Application/Project by
the City nor the granting of any approvals in connection with such review shall be
construed to grant the Applicant/Owner any entitlement to obtain a Final Certificate of
Concurrency with respect to all or any portion of the Project or the create any exemption
from the provisions of Article IX of the Ocoee Land Development Code.
2) The City is subject to the terms, provisions and restrictions of F.S. Chapter 163
concerning Moratoriums of the issuance of Building Permits under certain circumstances.
the City has no lawful authority to exempt any private entity or itself rom the Application
of such state legislation and nothing herein shall be construed as such exemption.
3) All parking requirements will be in accordance with the City of Ocoee Land
Development Code for each parcel.
4) A 10' wide landscape buffer will be provided along S.R. 50 and Blackwood Avenue.
5) Stormwater runoff for the volumetric pre/post difference for the 25 year/ 96 hour storm
shall be retained on site, detailed retention pond design, including geotechnical
information, will be provided with the Final Engineering Plans.
6) All stormwater ponds are to be maintained by each Lot Owner.
7) A 5' sidewalk will be constructed along all R/W's as required by the Land Development
Code VI-3-H.
8) All fire hydrant locations will be determined and designed with Final Engineering Plans.
9) 100 - Year Floodplan Boundary along Lake Bennet is 118 M.S.L. The Northeast corner
of the subject property is located in flood zone "A". Applicant to apply for and receive
FEMA Floodplan Determination Letters and "Letter of MAP Revision") (LOMR) or
"Letter of Map Amendment" (LOMA) prior to Final Subdivision Plan submittal, for all
FEMA Flood Zone Areas. A field location survey of the 100 year contour line will be
provided with the Final Engineering Plans.
10) At all corners and where applicable, sidewalk access ramps shall be constructed to permit
passage of those who are physically challenged.
11) The "Lake Bennet Centre Development's Agreement" dated August 19th, 1986 will be
formally amended prior to Final Subdivision Plan approval based upon (1) the proposed
amendments to the Developer's Agreement as specified on sheet 5 of 5 of the
Preliminary Subdivision Plan, and (2) all requirements specified by the City Attorney
necessary to ensure proper legal form and the incorporation of all appropriate Conditions
of Approval.
12) All access and utility easements shown on the Subdivision Plan will be private easements
in favor of the Owners of all of the Lots within the Subdivision, their successors,
assigns, employees, invitees, tenants and guests, which easements will be shown on the
Plat of the Subject Property, and which will also be further defined and delineated in a
Declaration of Covenants, Restrictions, and easements to be recorded at the time of the
recording of the Plan. Fee simple title to the land underlying the easements will be
owned by the Owner of the Lot on which easements or portion thereof, lies, the primary
obligation for maintenance, repair and replacement of the improvements contained within
the easements will be allocated to the Owner of Lot 7 by the above-referenced
Declaration. The cost and expense of such maintenance, repair and replacement will be
allocated among the Owners of all of the Lots comprising the Subdivision pursuant to
provisions in the Declaration, including provision for assessment and lien in the event
that any such Lot Owner fails to pay its proportion share.
13) Based upon Final Engineering and Final Plat requirements, access rights to S.R. 50 and
Blackwood Avenue from all Lots except at the approved locations, will be dedicated to
the City of Ocoee.
14) All legal instruments including, but not limited to, any Declaration of Covenants,
Conditions and Restrictions, Property Owners Association Documentation, Easement
Agreements and Warranty Deeds conveying property to the City or Property Owners
Association must be submitted to and approved by the City prior to Plat approval.
15) No access to Maine Street will be provided to Lot 6 in either Phase lA or 1B.
16) A detailed analysis of signalization, geometry and lane configuration at S.R. 50 and
Blackwood Avenue will be conducted as part of the Final Subdivision Plan review and
incorporated into those plans.
17) Copies of the Florida Department of Transportation Driveway and Drainage Connection
Permits will be submitted and approved prior to Final Subdivision Plans approval by the
DRC.
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