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Home My WebLink AboutVI (B) 1. Sylvestri Investments of Florida Inc - Second Amendment to Development Agreement AGENDA 10-3-95 Item VI B 1 FOLEY & LARDNER ATTORNEYS AT LAW SUITE 1800 111 NORTH ORANGE AVENUE A MEMBER OF GLOBALEX ORLANDO, FLORIDA 32801 WITH MEMBER OFFICES IN JACKSONVILLE BERLIN TELEPHONE (407) 423-7656 TALLAHASSEE BRUSSELS TAMPA FACSIMILE (407) 648-1743 DRESDEN WEST PALM BEACHMAILING ADDRESS FRANKFURT MILWAUKEE LONDON MADISON POST OFFICE BOX 2193 PARIS CHICAGO ORLANDO, FL 32802-2193 SINGAPORE WASHINGTON,D.C. STUTTGART TAIPEI MEMORANDUM TO : The Honorable Mayor and City Commissioners of the City of Ocoee FROM : Paul E . Rosenthal , Esq. , City Attorney DATE : September 28 , 1995 RE : Second Amendment to Development Agreement with Silvestri Investments The City and Silvestri Investments of Florida, Inc . ( "the Developer" ) have previously entered into a Development Agreement dated June 18 , 1991 , as amended December 13 , 1994 ( " the Development Agreement " ) . The Development Agreement requires the Developer to design, engineer, permit and construct Clarke Road from A. D . Mims Road north to Clarcona- Ocoee Road, subject to the acquisition by the City of certain right-of-way necessary for such road project . Earlier this year, the City completed its acquisition of the remaining right-of-way . The Development Agreement also provides that no Certificates of Occupancy may be issued for any of the lands owned by the Developer until the roadway is completed and dedicated to the City; however, the Developer is currently permitted to obtain building permits due to the commencement of construction of the road project . For several months , the City staff has been in discussions with the Developer in order to assure that Clarke Road is completed to Clarcona-Ocoee Road in accordance with the requirements of the Development Agreement . During these discussions , both the City and the Developer identified issues which needed to be addressed . The Developer now has a better understanding of its obligations , has submitted to the City plans for the final segment of Clarke Road and is now prepared to proceed with the construction of this remaining segment . ESTABLISHED 1 8 4 2 The Honorable Mayor and City Commissioners of the City of Ocoee September 28, 1995 Page 2 The completion of the final segment of Clarke Road will require certain intersection improvements at the proposed intersection of Clarke Road and Clarcona-Ocoee Road . These improvements were not included as an obligation of the Developer and, absent an amendment to the Development Agreement , would need to be designed, engineered, permitted and constructed at the City' s expense . However, the Development Agreement does require improvements at the intersection of A. D . Mims Road and Apopka-Vineland Road . The City staff has concluded that these intersection improvements are not a City priority, particularly in light of annexation restrictions agreed to by the City in the Joint Planning Area Agreement with Orange County. The improvements at Clarcona- Ocoee Road also appear to have a more direct impact on the development of the Prairie Lakes PUD . The City staff determined that the interest of both the City and the Developer would be better served by having the Developer construct the Clarke Road/Clarcona-Ocoee Road intersection improvements , in lieu of the A. D . Mims/Apopka-Vineland improvements . Attached hereto is a proposed Second Amendment to Development Agreement between the City and the Developer which will resolve issues of importance to both the City and the Developer and provide for the completion of Clarke Road in a timely manner . Highlights of the Second Amendment are as follows : (1) The Developer acknowledges that the City has acquired all necessary right-of-way . (2 ) The Developer reaffirms its obligation to design, engineer, permit and construct , at its expense , the Clarke Road improvements from its present terminus north to Clarcona-Ocoee Road . Further, they agree to commence construction within sixty days of the date of approval of the Second Amendment . (3 ) The City agrees that the Developer will not be required to construct sidewalks within the final segment of Clarke Road . All of this segment is outside of lands owned by the Developer and sidewalks would typically be constructed at the time of development by the property owner fronting the road . This is also consistent with the approach taken throughout the Prairie Lakes PUD . (4 ) The City agrees to accept the dedication of Clarke Road in two phases . The first phase would be from The Honorable Mayor and City Commissioners of the City of Ocoee September 28, 1995 Page 3 A. D . Mims Road north to its present terminus . The second phase would be to Clarcona-Ocoee Road . Except as set forth below, no certificates of occupancy would be issued until all of Clarke Road is completed and dedicated to the City . ( 5 ) The Developer agrees to construct , at its expense , intersection improvements at Clarke Road and Clarcona-Ocoee Road in lieu of improvements at the intersection of A. D . Mims Road and Apopka-Vineland Road . ( 6) The Developer is allowed to proceed with the development of the Phase I Prairie Lake Subdivision and obtain Certificates of Occupancy for 62 lots prior to completion of the second phase of Clarke Road, subject to certain limitations including the commencement of construction of the second phase and completion of construction of the sub-base for such phase . However, the Developer may obtain 10 Certificates of Occupancy prior to completion of the sub-base for Phase II of Clarke Road as long as all other conditions have been satisfied . (7) A dual obligee maintenance bond, along with an assignment of rights against the Developer' s contractor, will be accepted by the City . This is a two year bond and is comparable or better than the bond received by the City in connection with the City' s Clarke Road project . The City staff has reviewed the proposed Second Amendment and recommends it to the City Commission . RECOMMENDATION: It respectfully is recommended that the City Commission approve the Second Amendment to Development Agreement between the City of Ocoee and Silvestri Investments of Florida, Inc . and authorize execution thereof by the Mayor and City Clerk . PER : dh encl . C:\WP51\DOCS\OCOE\MEMOS\PERDDH09.284 1 9/29/95 I DEBBIEH I PER:dh THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Paul E. Rosenthal, Esq. FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 For Recording Purposes Only SECOND AMENDMENT TO DEVELOPMENT AGREEMENT THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT (the "Second Amendment") is made and entered into as of the day of , 1995 by and between SILVESTRI INVESTMENTS OF FLORIDA, INC., a Florida corporation (hereinafter referred to as the "Developer"), whose address is 3312 Olde Wharf Run, Winter Park, Florida 32792 and the CITY OF OCOEE, a Florida municipal corporation (hereinafter referred to as the "City"), whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761. WITNEE5ETH: WHEREAS, the Developer and the City entered into that certain Development Agreement (the "Development Agreement") dated June 18, 1991 and recorded December 6, 1991 in Official Records Book 4352, Page 1655, as amended by First Amendment thereto dated December 13, 1994 and recorded in Official Records Book 4839, Page 2121, all of the Public Records of Orange County, Florida; and WHEREAS, the Developer and the City desire to amend the Development Agreement in order to address certain matters related to the completion of Clarke Road. NOW, THEREFORE, in consideration of the mutual premises contained herein, and other good and valuable consideration, 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. Additional Clarke Road Land. Section 3(H) of the Development Agreement is hereby deleted in its entirety and the following is substituted in lieu thereof: "(H) The City has acquired title to that portion of the Developer's Clarke Road Segment described in Exhibit "F" attached hereto and by this reference made a part hereof("the Additional Clarke Road Land"). All references herein to Clarke Road, the Developer's Clarke Road Segment and the Clarke Road Improvements, shall include the Additional Clarke Road Land. It is expressly agreed that the Developer shall design, engineer, permit and construct the Clarke Road Improvements on the Additional Clarke Road Land." Section 3. Clarke Road Improvements. The City hereby acknowledges that the Developer has commenced construction of the Clarke Road Improvements on all of the Developer's Clarke Road Segment except for the Additional Clarke Road Land. The Developer hereby reaffirms its obligation to design, engineer, permit and construct, at its expense, the Clarke Road Improvements from its present terminus as of the date of this Second Amendment north to Clarcona-Ocoee Road. The Developer agrees to commence construction of the Clarke Road Improvements on the Additional Clarke Road Land within sixty (60) days from the date of the City's approval of the Clarke Road Plans for the Additional Clarke Road Lands and to proceed with due diligence to complete said improvements in a timely manner so that Clarke Road is completed and dedicated as a public roadway from A.D. Mims Road north to Clarcona- Ocoee Road. It is agreed that the Developer shall not be required as part of the Clarke Road Improvements to construct sidewalks within that portion of the Clarke Road Improvements located on the Additional Clarke Road Lands. 2 Section 4. Acceptance of Improvements by City. The City hereby agrees that, subject to the terms and conditions set forth herein, the Developer, at its option, may complete the Clarke Road Improvements on the Developer's Clarke Road Segment, dedicate said improvements to the City as a public roadway, and comply with the requirements of Section 3(G) of the Development Agreement in two phases with the first phase consisting of all of the Developer's Clarke Road Segment except for the Additional Clarke Road Land ("Phase I") and the second phase consisting of the Additional Clarke Road Land ("Phase II"). In the event the Developer dedicates Phase I of the Developer's Clarke Road Segment prior to the completion and dedication of Phase II, then in such event the Developer shall, at its sole cost and expense, barricade the northern terminus of said Phase I and erect appropriate signage for a dead-end road, all in accordance with the requirements of the City Engineer, and maintain such barricade and signage until such time as Phase II of the Developer's Clarke Road Improvements is dedicated to and accepted by the City. Except as aforesaid, nothing contained herein shall be construed to relieve the Developer of its obligation to complete the Clarke Road Improvements in accordance with the provisions of the Development Agreement. Notwithstanding the foregoing, no certificate of occupancy will be issued with respect to any portion of the Property except for Phase I of the Prairie Lake Subdivision (as set forth in Section 7B hereof) until such time as all of the requirements set forth in Section 10 of the Development Agreement have been satisfied. The Developer hereby advises the City that it intends to complete Clarke Road in two phases as set forth herein. Section 5. Intersection Improvements. Section 6(B)of the Development Agreement is hereby deleted in its entirety and the following is substituted in lieu thereof: "(B) The Developer shall, at the Developer's sole cost and expense, design, engineer, permit, construct and install "Intersection Improvements" at the 3 following designated intersections in accordance with the time-table set forth below: (1) At the intersection of Clarke Road and A.D. Mims Road, to be constructed and installed concurrent with the construction of the Clarke Road Improvements ("the Clarke/A.D. Mims Intersection Improvements"); (2) At the intersection of Clarke Road and Clarcona-Ocoee Road, to be constructed and installed concurrent with the construction of Clarke Road Improvements on the Additional Clarke Road Land ("the Clarke Road/Clarcona-Ocoee Road Intersection Improvements"); and (3) At the intersection of Street "A" as shown on the Land Use Map and A.D. Mims Road, to be constructed when Street 'A' connects to A.D. Mims Road; (hereinafter, collectively referred to as the "Required Intersection Improvements")." The foregoing is intended to relieve the Developer of any requirement (whether pursuant to the Development Agreement, or the Prairie Lakes PUD) to make Intersection Improvements at the intersection of A.D. Mims Road and Apopka-Vineland Road and to substitute in lieu thereof Intersection Improvements at the intersection of Clarke Road and Clarcona-Ocoee Road. In the event of a conflict between the foregoing provision and the Prairie Lakes PUD, including the Conditions of Approval to Land Use Plan with respect thereto, it is agreed that the provision of this Second Amendment shall control. Section 6. Road Impact Fee Credits. (A) Subsection 8(A)(2) of the Development Agreement is hereby deleted and the following is substituted in lieu thereof: "(2)The actual cost of the Clarke Road/Clarcona-Ocoee Road Intersection Improvements;" (B) Subsection 8(E)(iii) of the Development Agreement is hereby deleted and the following is substituted in lieu thereof: 4 "(iii) THE CLARKE ROAD/CLARCONA-OCOEE ROAD INTERSECTION IMPROVEMENTS;" (C) All references in Subsection 8(E) of the Development Agreement to "A.D. Mims/Apopka-Vineland Intersection Improvements" are hereby changed to "Clarke Road/Clarcona-Ocoee Road Intersection Improvements". Section 7. Certificate of Occupancy. (A) All references in Section 10 of the Development Agreement to A.D. Mims/Apopka Vineland Road Intersection Improvements are hereby changed to "Clarke Road/Clarcona-Ocoee Road Intersection Improvements". (B) Notwithstanding the provisions of Section 10 of the Development Agreement or any other provision contained therein to the contrary, it is agreed between the parties that the Developer shall be entitled to obtain Certificates of Occupancy for homes constructed on platted lots within Phase I of the Prairie Lake Subdivision (consisting of 62 lots), subject to the following conditions: (i) The Developer shall have platted Phase I of the Prairie Lake Subdivision. (ii) The Developer shall have dedicated to the City the Phase I Developer's Clarke Road Segment and such dedication shall have been accepted by the City so that the Prairie Lake Subdivision has access to a dedicated public roadway. (iii) The City shall have approved the plans for Phase II of the Developer's Clarke Road Segment. (iv) The Developer shall have entered into a construction contract for Phase II of the Developer's Clarke Road Segment, such contract shall have been approved by the City, and the contractor thereunder shall have delivered a performance bond to the City and Developer which may be a dual obligee bond. 5 (v) The Developer shall have completed construction of the sub-base for Phase II of the Developer's Clarke Road Segment in accordance with the approved plans; except that this condition shall not apply to the first ten (10) Certificates of Occupancy issued for Phase I of the Prairie Lake Subdivision. (vi) The City shall have approved the plans for the Clarke Road/Clarcona- Ocoee Road Intersection Improvements. (vii) The Developer and the holder of building permits for Phase I of Prairie Lake Subdivision shall have complied with all applicable provisions of the Ocoee City Code which are conditions precedent to the issuance of Certificates of Occupancy. Section 1. Maintenance Bond. Notwithstanding any provision contained in the Development Agreement to the contrary, the City agrees to accept a dual obligee maintenance bond(s) naming the City as a dual obligee so long as (a) the Developer assigns to the City, in a form acceptable to the City, all of its rights in such maintenance bond(s) and its right to require that the Contractor correct and repair any defective materials and workmanship, and (b) the contractor acknowledges and agrees to such assignment. Section 2. Effective Date. The Effective Date of this Second Amendment shall be the date that the last of the parties to this Second Amendment has executed the same and such date shall be inserted on the first page of this Second Amendment. Section 3. Defined Terms. All capitalized terms not otherwise defined herein shall have the meaning attributed to such term in the Development Agreement. Section 4. Unmodified. Except as expressly modified herein, the Development Agreement remains unchanged and in full force and effect. IN WITNESS WHEREOF, the Developer and the City have caused this Second Amendment to be executed by their duly authorized officers or representatives as of the day and year first above written. DEVELOPER: Signed, sealed and delivered SILVESTRI INV :•. I ► w F in the presence of: FLORIDA, • •a corporation B • . Signature vo F. Silvestri resident E N • t(0 .i,a c.3 Dated: /G'[ —17 1995 Print/Type Name (CORPORATE SEAL) ea (/../)ejtj Signature PAUL E. ROSENTHAL Print/Type Name 7 CITY: CITY OF OCOEE, a Florida municipal corporation By: Signature S. SCOTT VANDERGRIFT, Mayor Attest: Print/Type Name JEAN GRAFTON, City Clerk Dated: , 1995 Signature (SEAL) Print/Type Name FOR USE AND RELIANCE ONLY APPROVED BY THE OCOEE CITY BY THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING APPROVED AS TO FORM AND LEGALITY HELD ON _, 1995 THIS DAY OF , 1995. UNDER AGENDA NO. . FOLEY & LARDNER By: City Attorney 8 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 GRAFTON, well known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE, a Florida municipal corporation, 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. They are personally known to me. WITNESS my hand and official seal in the County and State last aforesaid this day of , 1995. Signature of Notary (NOTARIAL SEAL) 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 aforesaid and in the County aforesaid, to take acknowledgements, personally appeared GUSTAVO F. SILVESTRI, well known to me to be the Vice President of SILVESTRI INVESTMENTS OF FLORIDA, INC., a Florida corporation, and that he acknowledged before me executing the same freely and voluntarily under authority duly vesd in him on behalf of said corporation. He [ ] is personally known to me or J>4 produced r`ev... cir Vt;(CS /tceAre as identification. T WITNESS my hand and official seal in the County and State last aforesaid this3.? day of September, 1995. ig-9 I baiw.\-ta Signature of Notary (NOPAUL E. ROSENTHAL cPµY F'eTIllOrPIGiAti ,r�'AR: SEA.. 1 .'-...;);i C.061mi :ON Nc;tf3C2 Name of Notary (Typed, Printed or Stamped) }!`te a ,� CC' 942b9 MY Cuw1+AIJJIGrl „S?. I, 1.........::t .1;i t.'f 1 .. 7 i Commission Number (if not legible on seal): A:\SECAMD.!NW'_';91J6f95:SILVESTRI -CLARKE ROAD(DISK;PER:dh My Commission Expires (if not legible on seal): 9