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HomeMy WebLinkAboutItem III (C) Approval and Authorization for Mayor and City Clerk to execute Second Development Agreement with Lake Lotta, Ltd AGENDA 2-20-96 Item III G FOLEY & LARDNER ATTORNEYS AT LAW SUITE 1800 A MEMBER OF GLOBALEX III NORTH ORANGE AVENUE WITH MEMBER OFFIOES IN ORLANDO. FLORIDA 32801 BERLIN JACKSONVILLETELEPHONE 14071423-7656 BRUSSELS TALLAHASSEE DRESDEN TAMPA FACSIMILE 14071 648-1743 FRANKFURT WEST PALM BEACH MAILING ADDRESS: LONDON MILWAUKEE PARIS POST OFFICE BOX 2193 ' MADISON SINGAPORE CHICAGO ORLANDO, FL 32802-2193 STUTTGART WASHINGTON. D.C. TAIPEI MEMORANDUM TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq. , City Attorney (57/..._ DATE: February 14, 1996 RE: Second Development Agreement with Lake Lotta, Ltd. In connection with the development of the West Oaks Mall, ', General Growth (formerly Homart) is required to undertake the rough' grading of a right-of-way and other improvements appurtenant'', thereto which will provide a means of ingress/egress from State Road 50 to the Lake Lotta Center Multi-Family Parcel located east, of the Mall. During the course of construction, certain field, changes have been made to the construction plans which have been', approved by the City Engineer. These revised plans impact the Multi-Family Parcel and require certain incidental filling activities on the Multi-Family Parcel. In order to assure' compliance with the Lake Lotta Center DRI Development Order and to protect against any claims by Lake Lotta, Ltd. , the City staff required that Lake Lotta, Ltd. execute a Second Development' Agreement prior to authorizing General Growth to complete certain improvements on the Multi-Family Parcel. Attached hereto is a proposed Second Development', Agreement between Lake Lotta, Ltd. and the City of Ocoee. The', Agreement was executed by Lake Lotta, Ltd. on February 9, 1996. Since the Agreement was solely for the protection of the City and, General Growth was under critical time pressures, the City staff, authorized General Growth to undertake the improvements prior tol formal City Commission action on the proposed Agreement. The highlights of the proposed Second Development' Agreement are as follows: (1) Lake Lotta, Ltd. acknowledges that it has reviewed certain Roadway Improvement Plans and agrees that it will not bring any claim against the City with respect to such plans. E S T A B L I S H E D 1 8 4 2 Vim/ (2) The City agrees that it will not impose any condition on the development of the Multi-Family Parcel based upon the existence of an adjacent retention pond on the Mall property. (3) Lake Lotta, Ltd. confirmed that it has granted', General Growth the necessary approvals to enter upon its property. (4) The City and Lake Lotta, Ltd. agree that any activities by General Growth would not constitute development ) of the Lake Lotta Center PUD. In connection with the proposed Agreement, the City staff has ', obtained confirmation from the Florida Department of Community, Affairs and the Florida Game and Fish Commission that the proposed activity does not violate any provision of the Lake Lotta Center DRI. The proposed Agreement has been reviewed by the City ', staff and is recommended for approval. RECOMMENDATION: It respectfully is recommended that the City Commission approve the Second Development Agreement between Lake Lotta, Ltd. l and the City of Ocoee, authorizing execution thereof by the Mayor and City Clerk. encl. A:\2DD€VAGM.MEMI2/14/96'TRANSFER DLSICIPER* -2- TILS INSTRUMENT PREPARED BY: Paul E. Rosenthal, Esq. FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 RETURN TO: Jean Grafton, City Clerk City of Ocoee 150 North Lakeshore Drive Ocoee, FL 34761 SECOND DEVELOPMENT AGREEMENT (Lake Lotta Center PUD) THIS SECOND DEVELOPMENT AGREEMENT ("this Agreement") is made and entered into this day of February, 1996 by and between LAKE LOTTA, LTD. , a Florida limited partnership, whose mailing address is 890 State Road 434 North, Altamonte Springs, Florida 32714 (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") . WITNESSET H: 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, Florida, 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, by Ordinance No. 95-03 , adopted by the Ocoee City Commission on January 26, 1995, the City has heretofore approved for the Property that certain Land Use Plan for the Lake Lotta Center PUD (hereinafter referred to as the "Land Use Plan") ; and 4116 I{� WHEREAS, Parcel 4 (Multi-Family Residential) as depicted on the Land Use Plan ("Parcel 4") is a portion of the Property and the Lake Lotta Center PUD; and WHEREAS, Parcel 7 (Multi-Family Road) as depicted on the Land Use Plan ("Parcel 7") is owned in fee by the Owner, is a part of the West Oaks Mall PUD (formally known as the Lake Lotta Mall PUD) and along with certain easements connecting State Road 50 and Parcel 7, will provide access to Parcel 4 for the development of such parcel; and WHEREAS, as part of the development of the West Oaks Mall PUD, Homart Development Co. , a Delaware corporation ("Homart") is constructing a retention pond ("Pond 110") which is adjacent to Parcel 4 and Parcel 7, and the construction of Pond 110 has created a situation where it is in the best interest of Homart, Owner and the City for Homart to now do certain work ("Additional Construction") on Parcel 7 and Parcel 4; and WHEREAS, as part of the development of the West Oaks Mall PUD, Homart is undertaking the rough grading of a right-of-way and other improvements appurtenant thereto, for a roadway across Parcel 7 to serve as an access road for the future development on Parcel 4 (this work and the Additional Construction will collectively be referred to hereinafter as the "Roadway Improvements") ; and WHEREAS, the Owner and Homart have agreed as to the terms under which the Roadway Improvements will be done, subject to all applicable approvals and permits as required by the City and all other governmental entities with jurisdiction thereon; and WHEREAS, in connection with the construction of the Roadway Improvements, Homart (or others on behalf of Homart) has submitted to the City the following plans: LAKE LOTTA CENTER 1. Revised Sheets 14, 16 and 22 of 31 as prepared by Post, Buckley, Schuh & Jernigan date stamped received by the City on September 12, 1995 and Sheets 14a and 28a as prepared by Donald W. McIntosh Associates, Inc. date stamped received by the City on November 27, 1995 of the Clearing, Grubbing, Erosion Control and Mass Grading Plans for West Oaks Mall PUD, being a portion of Final Subdivision/Site Plans. 2 . Sheet 1 of 1 entitled Plan and Profile for Entrance Road 11 to Multi-Family Parcel at Lake Lotta PUD, City of Ocoee, Florida as prepared by Donald W. McIntosh Associates, Inc. date stamped received by the City on November 20, 1995. 2 (collectively, "the Roadway Improvement Plans") ; and WHEREAS, in connection with the preparation of the Roadway Improvement Plans, Homart retained the services of Post, Buckley, Schuh & Jernigan and the Owner retained the services of Donald W. McIntosh Associates, Inc. who prepared a portion of the Roadway Improvement Plans for the Owner and submitted such portion to the City on behalf of Homart and the Owner; and WHEREAS, the Roadway Improvement Plans call for certain fill from the West Oaks Mall PUD to be deposited on Parcel 4 which activities are incidental to the construction of the Roadway Improvements; and WHEREAS, Homart and the Owner have requested that the City approve the Roadway Improvement Plan; and WHEREAS, the City has approved the Roadway Improvement Plans subject to the execution of this Agreement by the Owner and the City; NOW, THEREFORE, in consideration of the premises and other good and valuable consideration 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 incorporated herein by this reference. Section 2 . Definitions. All words and terms utilized herein shall be as defined in that certain Development Agreement between the Owner and the City dated January 26, 1995 as recorded on April 10, 1995 in Official Records Book 4877, Pages 1913 , Public Records of Orange County, Florida, as amended ("the Development Agreement") . Section 3 . Approval of Plans and Conditional Release of City. The Owner hereby warrants and represents to the City that it has reviewed the Roadway Improvement Plans, and that it, along with the City, is fully relying on Homart, its engineers and agents, as to their representations concerning the impact of said plans, and the impact of Pond 110, upon Parcel 4 . Except for the filling of the grading area as depicted on the Roadway Improvement Plans, no condition will be imposed by the City on the development of Parcel 4 by virtue of the existence of Pond 110 (hereafter the "Condition") . So long as the City does not impose such a Condition as described above, the Owner hereby covenants and agrees that it shall not bring any claims, actions or proceedings of any nature whatsoever against the City, or any of its elected officials, employees, consultants and attorneys, arising out of or in any way related to the design, engineering, permitting, construction, maintenance and operation of the Roadway Improvements to be 3 constructed pursuant to the Roadway Improvement Plans and/or Pond 11 110 to be constructed pursuant to the plans submitted to and approved by the City. Notwithstanding anything to the contrary contained herein, the Owner shall retain any and all rights it may have now or in the future to bring legal or equitable actions against Homart, its successors, assigns, engineers, or agents. Section 4. Homart Access to Parcel 4. The Owner represents to the City that it has, by separate agreement, granted to Homart the right to enter upon Parcel 4 to the extent required to construct the Roadway Improvements and to deposit fill material on Parcel 4 in accordance with the Roadway Improvement Plans. Section 5. Incidental Activity. The parties hereto acknowledge that the filling and other related activities to be undertaken on Parcel 4 pursuant to the Roadway Improvement Plans are incidental to the development of the West Oaks Mall PUD and do not constitute development or authorization to commence development of the Lake Lotta Center PUD or any portion thereof. Further, the parties hereto acknowledge that such incidental activities shall not in any way be construed as constituting an approval of plans for the development of Parcel 4 or as indicating that the City will approve any preliminary plans prepared by Owner and submitted to the City or its consultants in connection with their review of such incidental activities. Section 6. City Acceptance of Proposed Roadway. The City agrees that the roadway and utility improvements to be constructed on Parcel 7 pursuant to the Roadway Improvement Plans is acceptable to the City for the purposes of the development of Parcel 4 with 200 multi-family residential units, and complies with the requirements of the City Land Development Code, subject to the Owner obtaining an easement from Homart connecting said roadway to State Road 50. The Owner acknowledges and agrees that its development plan for Parcel 4 must be consistent with the design of said roadway and utility improvements across Parcel 7 as set forth in the Roadway Improvement Plans. Section 7 . 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 8 . Covenant Running with the Land. This Agreement shall run with the Property and inure to the benefit of and be binding on the parties hereto and their respective 4 ` , successors and assigns and any person, firm, corporation, or entity who may become a successor in interest to the Property or any portion thereof. Section 9. 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 10. 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 11. 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 12 . 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; provided, however, that nothing contained herein shall be deemed to supersede or amend any provisions of the Development Order for the Lake Lotta Center Development of Regional Impact dated January 26, 1995, the Development Agreement and Ordinance No. 95-03 . Amendments to and waivers of the provisions of this Agreement shall be made by the parties only in writing by formal amendment. Section 13 . 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 documents and instruments in form and substance reasonably necessary to confirm and/or effectuate the obligations of either party hereunder. Section 14. Attorneys' Fees. In the event that either party finds 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 15. Disclaimer of Third Party Beneficiaries. This Agreement is solely for the benefit of and shall be binding upon the formal parties hereto and their respective authorized successors and assigns, and no right or cause of action shall 5 accrue upon or by reason hereof, to or for the benefit of any third party not a party to this Agreement or an authorized successor or assignee thereof. Section 16. 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 17. 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 18. 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. 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: Signed, sealed and delivered LAKE LOTTA, LTD. , in the presence of: a Florida limited partnership By: LOTTA GP NC. , a Flor' . corporation, its manag s f. = era) partner `( 4 5 L )CL. Q . By: /,i►� BarryT . Goodman, Print Name: Lisa A. Holmes President (1 aL AJ r (CORPORATE SEAL) P7)- Print Name: Joy H. McGraw 6 STATE OF FLORIDA COUNTY OF SEMINOLE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared BARRY S. GOODMAN, as President of LOTTA GP INC. , a Florida corporation, which is the managing general partner of LAKE LOTTA, LTD. , a Florida limited partnership,, and who [ x ] 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 9th day of/ - •ruary, 1996. U , ) Pt-14 a4 .c`N P.M' 47 o/ .h/ �! tore of. ha:kW O y a ' 0 " ' S. z : My Comm Exvwes 1 z a Christina M. Novotny F. U i NOV 2 1999 - _ - i Si Ne. cc�o�szs 3.77Name of Notary (Typed, Printed dr.-Stamped) `ri%. A1 ,G ;t ,F---- ---..•-• `-'...A -'1)' L..-,.� ���\ •,Vion Number of n«legible on seal): C C 5 0 7 5 25 //�C Cr: F'- \�����` My Commission expire.(if not legible on seal): 11/2/9 9 ////!1111 f I I111111��' 7 CITY: Signed, sealed and delivered CITY OF OCOEE, FLORIDA in the presence of: 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 SPECIAL MEETING Approved as to form aad HELD ON FEBRUARY _, 1996 legality this day of UNDER AGENDA ITEM NO. February _, 1996. FOLEY & LARDNER By: City Attorney 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, 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 February, 1996. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number(if not legible on seal): My Commissia t Expires(if not legible on seal): C:\WP51\DOCS\OCOEI2DDEVAGR.NEW 12/9/961 DEBB EH I PER 8 EXHIBIT "A" PARCEL 4 DESCRIPTION: That part of Section 21, Township 22 South, Range 28 East, Orange County, Florida and ORLANDO GROVES ASSOCIATION, LAKE LOTTA GROVES, as recorded in Plat Book "E", Page 52 of the Public Records of Orange County, Florida, being described as follows: Commence at the East 1/4 corner of said Section 21, thence run S 89°42'47" W along the South line of the Northeast 1/4 of said Section 21, for a distance of 1336.77 feet to the Northeast corner of the Northwest 1/4 of the Southeast 1/4 of said Section 21,- thence run S 00°14'27" W along the East line of said Northwest 1/4 of the Southeast 1/4 for a distance of 1325.27 feet; thence run N 89°32'59" E along the North line of Tracts 15, 16 and 17 of said ORLANDO GROVES ASSOCIATION, LAKE LOTTA GROVES for a distance of 90.63 feet to the POINT OF BEGINNING; thence continue N 89°32'59" E along said North line for a distance of 1226.53 feet to the Northeast corner of said Tract 17; thence run S 00°26'33" W along the East line of said Tract 17 and the Southerly prolongation thereof for a distance of 941.78 feet to the Easterly prolongation of the South line of Lot 3, Block "A" of said ORLANDO GROVES ASSOCIATION, LAKE LOTTA GROVES; thence run S 89°26'02': W along said South line of Lot 3, Block "A" and the Easterly prolongation for a distance of 1223.25 feet to a point which lies N 89°26'02" E, a distance of 180.83 feet distant from the Southwest corner of said Lot 3, Blbck "A"; thence run N 00°14'27" E for a distance of 944.21 feet to the POINT OF BEGINNING. Containing 26.514 acres more or less and being subject to any rights-of-way, restrictions and easements of record.