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HomeMy WebLinkAboutItem III (F) Approval and Authorization for Mayor and City Clerk to execute American Medical Associates Development Processing Agreement AGENDA 2-40-96 Item III If FOLEY & LARDNER ATTORNEYS AT LAW SUITE 1800 A MEMBER OF GLO4ALEX III NORTH ORANGE AVENUE WITH MEMBER OFFICES IN ORLANDO, FLORIDA 32801 BERLIN JACKSONVILLE TELEPHONE 14071423-7656 BRUStELS TALLAHASSEE DRE DEN TAMPA FACSIMILE 14071 648-1743 FRANKFURT WEST PALM BEACH MAILING ADDRESS: LONDON MILWAUKEE PARIS MADISON POST OFFICE BOX 2193 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 DATE: February 14, 1996 RE: Lake Bennet Centre: American Medical Associates Development Permit Processing Agreement On November 21, 1995 the City Commission approved the , Preliminary-Final Site Plans for Coordinated Care (Lot 6 - Lake Bennet Centre) . This Lot has now been purchased by American ! Medical Associates, Inc. which plans to construct a 119-bed nursing home facility within the Lake Bennet Centre Subdivision. While the Subdivision has been platted, the infrastructure improvements have not been completed. A letter of credit for completion of the Phase ', 1 infrastructure improvements has been posted by Zom Lake Bennet, Ltd. in accordance with the requirements of the Land Development Code. American Medical Associates needs to commence its ', development prior to the completion of the infrastructure ', improvements in order to avoid losing its approvals for the nursing home facility. This matter was addressed by the Development Review Committee which recommended that building permits be issued subject to the execution of a processing agreement. Attached hereto is a proposed Development Permit Processing Agreement between American Medical Associates, Inc. , Zom Lake Bennet, Ltd. and the City. The highlights of the Agreement are as follows: (1) Development permits will be issued in stages subject to compliance with certain threshold improvements. (2) Zom Lake Bennet, Ltd. reaffirms its commitment to complete the Subdivision Improvements in a timely manner. American Medical Associates is acknowledging that the City has made no representations regarding the schedule for completion of the Subdivision Improvements. However, if Zom fails to E S T A B L I S H E D 1842 e./7 meet its deadlines with the City, the proposed Agreement provides that the City would consider in good faith any, proposal from American Medical Associates to address such', failure of Zom. (3) No Certificates of Occupancy will be issued until, the Subdivision Improvements (as required by Zom's approvals) have been completed and accepted by the City. (4) American Medical Associates acknowledges that it is proceeding at its own risk and has agreed to indemnify the'. City. The City Manager, the Planning Director and the Building Official,, have reviewed the proposed Agreement and recommend its adoption. RECOMMENDATION: It respectfully is recommended that the City Commission approve the American Medical Associates Development Permit Processing Agreement between American Medical Associates, Inc. , Zom',, Lake Bennet, Ltd. and the City and authorize execution thereof byl the Mayor and City Clerk. encl. A:\OCOEE.MEMI?I1M96'TRANSFER DISK IPERjed -2- AMERICAN MEDICAL ASSOCIATES DEVELOPMENT PERMIT PROCESSING AGREEMENT THIS AMERICAN MEDICAL ASSOCIATES DEVELOPMENT PERMIT'i PROCESSING AGREEMENT (this "Agreement") is made and entered into', this day of February, 1996 by and between AMERICAN MEDICALI ASSOCIATES, INC. , a Florida corporation, whose mailing address is 1000 Johnson Ferry Road, Suite F-131, Marietta, Georgia 300681 (hereinafter referred to as the "Lot Owner") , ZOM LAKE BENNET, LTD. , a Florida limited partnership, whose mailing address is 22691 Lee Road, Suite 101, Winter Park, Florida 32789 (hereinafter, referred to as the "Developer") and the CITY OF OCOEE, a Floridas municipal corporation, whose mailing address is 150 North Lakeshore, Drive, Ocoee, Florida 34761 (hereinafter referred to as the "City") . WITNESSET H: WHEREAS, the Lot 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, the Lot Owner intends to develop the Property in accordance with those certain Preliminary-Final Site Plan for Coordinated Care as prepared by Secon Engineering Sciences, Inc. , under Project No. COCARE, date stamped Received by the City on November 9, 1995 and approved by the Ocoee City Commission on November 21, 1995 ("the Lot Owner Final Site Plans") ; and WHEREAS, the Lot Owner intends to construct a 119 bed', nursing home facility on the Property in accordance with certain, plans prepared by Carter-Lemmen Architects ("the Lot Owner Architectural Plans") ; and WHEREAS, the Property is located within the Lake Bennet', Centre Subdivision ("the Subdivision") , which subdivision is being developed by the Developer pursuant to: (1) the Final Subdivision Plans for Lake Bennet Centre as prepared by Hollis Engineering Incorporated, date stamped Received by the City on August 1, 1995, and approved by the Ocoee City Commission on August 15, 1995 ("the', Final Subdivision Plans") , and (2) the Lake Bennet Centre, Developer's Agreement dated April 4, 1995 between the Developer andll the City ("the Developer's Agreement") (the Final Subdivision Plans' and the Developer's Agreement are herein collectively referred to'', as "the Development Plans") ; and WHEREAS, the Developer has platted the Subdivision by recording the Plat of Lake Bennet Centre in Plat Book 35, Pages 126 and 127 of the Public Records of Orange County, Florida ("the Plat") , but the Developer has not completed all of the Subdivision', improvements in accordance with the Development Plans, the, requirements of the Ocoee City Code and all governmental approvals' and permits with respect to the Subdivision (collectively "the Subdivision Improvements") ; and WHEREAS, the Lot Owner has requested that the City issue', certain development permits prior to completion by the Developer of , the Subdivision Improvements; and WHEREAS, the City is willing to issue certain development permits, prior to completion by the Developer of the Subdivision', Improvements, subject to the terms, conditions and limitations hereinafter set forth; and WHEREAS, all references in this Agreement to "development', permits" shall be as defined in Section 2-2 (86) of the Ocoee Land, Development Code and shall include but not be limited to clearing', and grubbing, wall, underground storm sewer, foundation, , underground utility, paving, curb and gutter, storm sewer, and', building permits; and WHEREAS, the issuance of certain development permitsl', prior to completion of the Subdivision Improvements will allow the ,, Lot Owner to proceed, at the Lot Owner's sole risk, on an expedited , basis while at the same time protecting the public health, safety ', and welfare; and WHEREAS, the City has determined that it is in the best , interest of the City to issue certain development permits to the Lot Owner prior to completion by the Developer of the Subdivision ', Improvements. 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 incorporated herein by this reference. -2- Section 2. Agreement to Issue Development Permits. Subject to the terms and conditions set forth in this Agreement, the City hereby agrees to issue the following development permits, (subject to the payment of all applicable fees and charges) in accordance with the schedule indicated below to the Lot Owner or its designees for the development on the Property in accordance', with the Lot Owner Final Site Plans and the Lot Owner Architectural', Plans, as approved by the City, and all other governmental', approvals and permits with respect to the Property: (A) Upon execution of this Agreement by the Lot Owner: Clearing, Grubbing and Fill permits. (B) Upon the Effective Date this Agreement: Building, permits for construction activities which do not utilizei, combustible materials, except that permits for on-site sewer, and water lines and appurtenant facilities are expressli excluded. (C) Upon the Effective Date of this Agreement and issuance by the Florida Department of Environmental Protections of water and wastewater permits for the Property: Building', permits for the installation of on-site sewer and water lines', and appurtenant facilities. (D) Upon completion by the Developer of a stabilized', road bed serving the Property from State Road 50 and and approved water system which the City, in its discretion, deems to be acceptable and operational for firefighting purposes at the Property: All remaining development permits note', previously authorized to be issued. Section 3. Completion of Subdivision Improvements. 1 The Developer agrees to proceed in good faith to complete the,, Subdivision Improvements in accordance with the time schedule set'', forth in the Development Plans and other governmental approvals and permits for the Subdivision. The Developer acknowledges that the, City and Lot Owner are materially relying on the foregoing in, connection with their entering into this Agreement. The Lot Owner', acknowledges that the City has made no warranty or representation', to the Lot Owner with respect to the schedule for completion of the', Subdivision Improvements and that it is relying solely on its own', investigations and inquiries with respect thereto. Nothing! contained herein or in the Development Plans or in any approval or permit now or hereafter granted by the City to the Lot Owner or the', Developer shall be construed to in any way obligate the City to complete the Subdivision Improvements in the event the Developer,, fails to do so. The City agrees in good faith to consider any request from the Lot Owner with respect to the timely compliance by', the Developer with its obligations to complete the Subdivision'. Improvements. -3- Section 4. Restrictions of Issuance Certificate of 1, Occupancy. No Certificate of Occupancy shall be issued by the City for a structure constructed on the Property or any portion thereof, until (i) the Lot Owner and, if applicable, the permit holder has complied with all applicable provisions of the Ocoee City Code'. related to the issuance of Certificates of Occupancy, and (ii) the Developer and, if applicable, the permit holder has completed the Subdivision Improvements in accordance with the Development Plans', and all other applicable governmental approvals, permits and requirements and such improvements have been approved by the City,, as evidenced by the issuance of a Certificate of Completion, and, to the extent such improvements are to be dedicated or conveyed to the City, the City has accepted such dedication or conveyancel, (collectively, the "Certificate of Occupancy Conditions") . Section 5. Conditional Approval: Indemnity. (A) Approval by the City of development permits for the Property pursuant to the provisions of this Agreement shall for all ', purposes be a conditional approval and conditional development', permits, respectively. The Lot Owner and the holder of any development permit issued for the Property acknowledge and agree, that they are proceeding at their own risk and expense in obtaining development permits and commencing development activities pursuant ) to the development permits issued pursuant to the provisions of this Agreement. (B) The Lot Owner and any subsequent owner of the ', Property or any portion thereof shall not be entitled to claim any vested rights or detrimental reliance based upon actions taken in ''. reliance on approval of any development permits issued pursuant to the provisions of this Agreement. (C) The Lot Owner hereby indemnifies and holds the City harmless from any and all damages, costs, expenses, suits, claims, fines, penalties and liabilities, including but not limited to , attorney's fees and paralegal fees and costs, whether at the trial '. or appellate level, without regard to whether any legal or administrative proceedings are commenced or whether or not such , action is prosecuted to judgment or a final determination, arising out of or related to this Agreement, and any development permits issued by the City pursuant to the provisions of this Agreement; provided, however, that the foregoing indemnity shall not be construed as applying to or including any obligations of the ', Developer and it is expressly agreed that the Lot Owner is not assuming any obligations of the Developer except to the extent set , forth in the Lot Owner Final Site Plans and the Lot Owner Architectural Plans. Section 6. 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 -4- person hereinafter designated, or (ii) 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 7. Covenant Running with the Land. This Agreement shall run with the Property and inure to and be for the benefit of and being binding on 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 or who may be issued a development permit for all or any portion of the Property. Section 8. Recordation of Agreement. At the option', of the City, this Agreement may be recorded, at the Lot Owner's', expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Lot Owner or the!. Developer, execute and deliver letters affirming the status of this Agreement. Section 9. Applicable Law. This Agreement and the'I, provisions contained herein shall be construed, controlled and'', interpreted according to the laws of the State of Florida. Section 10. 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 11. 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 Lot Owner Final Site Plans, Lot Owner Architectural Plans, the Development Plans, or any other governmental approvals or permits with respect to the Subdivisions and the Property. Nothing contained in this Agreement shall be! construed as a waiver of any provisions of the Ocoee City Code or any permits or approvals hereto granted by the City. Amendments to and waivers of the provisions of this Agreement shall be made byl the parties only in writing by formal amendment. Section 12. 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. -5- Section 13. 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, paralegal 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 14. 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 15. Captions. Captions of the Sections andel 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 16. 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 17. Effective Date. The Effective Date of this Agreement shall be the date that it is last executed by a party hereto. IN WITNESS WHEREOF, the Developer, and the City have, caused this instrument to be executed by their duly authorized', officers as of the day and year first above written. LOT OWNER: Signed, sealed and delivered AMERICAN MEDICAL ASSOCIATES, in the presence of: INC. , a Florida corporation By: Print Name: Name: Title: (CORPORATE SEAL) Print Name: -6- DEVELOPER: Signed, sealed and delivered ZOM LAKE BENNET, LTD. , in the presence of: a Florida limited partnership By: ZOM PROPERTIES, INC. , a Florida corporation, its sole general partner By: Print Name: Name: Title: (CORPORATE SEAL) Print Name: CITY: Signed, sealed and delivered in the presence of: 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 HELD ON , 1996 legality this day of UNDER AGENDA ITEM NO. , 1996. FOLEY & LARDNER By: City Attorney -7- STATE OF COUNTY OF 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 AMERICAN MEDICAL ASSOCIATES, INC. , a' corporation, and who [ ] 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, 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 , 1996. 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): -8- STATE OF COUNTY OF 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 ZOK PROPERTIES, INC. , a Florida' corporation, as sole general partner of ZOM LAKE BENNET, LTD. , al, Florida limited partnership, and who [ ] 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 used, and purposes therein expressed. WITNESS my hand and official seal in the County and State last aforesaid this day of , 1996. 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): -9- 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 , 1996. Signature of Notary Name of Notary (Typed, Printed or Stamped) Cammiuioa Number(if not legible on seal): My Commiuioa Expires(if not legible on seal): A:\PROCESS.AG1'I2/14/96ITRANSFER DISK I PERjed -1U- EXHIBIT "A" Lot 6 of the Plat of Lake Bennet Center as recorded in Plat', Book 35, Pages 126 and 127 of the Public Records of Orange County, Florida.