HomeMy WebLinkAboutItem III (E) Approval and Authorization for Mayor and City Clerk to execute Second Amendment to Development Agreement with GGP/Homart, Inc.(White Road). Agenda 3-5-96
Item III E
FOLEY & LARDNER
ATTORNEYS AT LAW
SUITE 1800 A MEMBER OF GLOBALEX
III NORTH ORANGE AVENUE WITH MEMBER OFFICES IN
ORLANDO, FLORIDA 32801 BERLIN
JACKSONVILLE TELEPHONE 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 fiL
DATE: March 5, 1996
RE: White Road: Second Amendment to Development Agreement
with GGP/Homart
Attached hereto is the final draft of the Second
Amendment to Development Agreement between GGP/Homart, Inc. and the
City. Changes from the draft included in the agenda packet are
blacklined. Highlights of the changes are as follows:
(1) The reference to "Property" has been changed to "Project"
and no legal description is attached.
(2) The cost of all permits are being borne by the City and
are not included in the Add Alternate Price.
(3) Procedural changes have been made to the payment schedule
and joint checks will not be issued.
(4) The cost of the two year maintenance bond in the amount
of $2, 500 will be borne by the City and is not included
in the Add Alternate Price.
(5) The additional White Road right-of-way will be obtained
from Lake Lotta, Ltd. prior to the commencement of
construction of the improvements. We have been advised
that the deed will be forth coming prior to the
commencement of construction. Additionally, an Easement
Agreement is being prepared in connection with the joint
use of the sinkhole/retention pond by the City and Lake
Lotta, Ltd. That easement agreement will be presented to
the City Commission at a subsequent meeting.
PER:dh
Enclosure
C:\WP51\DOCSIOCOB\MFT.IOS\PERDDH03.05113/5/96IDEBBIEH IPER:dh
ESTABLISHED 1 8 4 2
THIS 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
AFTER RECORDING RETURN TO:
Jean Grafton, City Clerk
CITY OF OCOEE For Recording Purposes Only
150 North Lakeshore Drive
Ocoee, FL 34761
(407)656-2322
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT (the "Second
Amendment") is made and entered into this _ day of Mai, 1996 (the
"Effective Date") by and between GGP/HOMART, INC., a Delaware corporation as the legal
successor to Homart Development Co., a Delaware corporation (hereinafter referred to as the
"Developer"), whose address is 3500 Piedmont Road, N.E., Atlanta, Georgia 30305 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.
WIIN � STH:
WHEREAS, the Developer is the legal successor to Homart Development Co. and owns
- ._ - . -
. - - --
. .. -- - . .. . -. . . . . . . .. .. is developing that certain project
known as the Lake Lotta Mall I •velo s went of Re ional fin'ac :n• ' kn i wn ;_ h• West
Oaks Mall (hereinafter referred to as the "Property")"Proiect"i; and
WHEREAS, the City and the Developer have heretofore entered into that certain
Development Agreement, dated January 26, 1995, as recorded on April 10, 1995 in Official
Records Book 4877, Page 1880, as amended by that certain First Amendment to Development
Agreement, dated July 18, 1995, as recorded on July 31, 1995 in Official Records Book 4924,
Page 2466, all of the Public Records of Orange County, Florida (collectively, the "Development
Agreement"); and
WHEREAS, the Developer and the City have heretofore entered into that certain
Development Order for Lake Lotta Mall Development of Regional Impact (the "DRI
Development Order") dated January 27, 1995, relating to the proposed development of the
Property Project as set forth in the Development Agreement; and
WHEREAS, the Developer is currently constructing or is about to commence
construction of certain infrastructure, roadway and other improvements ea related to the
Pfeperty project and Clarke Road, said construction being pursuant to a certain construction
contract ("the Developer's Construction Contract") with C.A. Meyer Paving and Construction
Co. (the "Developer's Contractor"); and
WHEREAS, pursuant to Part II.C.2. of the DRI Development Order, the Developer has
heretofore paid to the City the sum of$250,000.00 to be applied by the City towards the design,
engineering, permitting and construction of such improvements to that portion of White Road
west of Clarke Road and adjacent to the Lake Lotta Center DRI as the City deems necessary to
reduce the curvature of White Road (the "White Road Improvements"); and
WHEREAS, the City has heretofore obtained from Professional Engineering Consultants,
Inc. ("PEC") certain plans consisting of Sheets 1 through 44 as prepared by PEC under Job No.
0E242 and sealed by PEC on January 9, 1996 (the "Plans"); and
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WHEREAS, the Plans include the design and engineering and plans and specifications
for the White Road Improvements; and
WHEREAS, the Developer's Construction Contract includes as an "add alternate" the
construction of the White Road Improvements by the Developer's Contractor in accordance with
the Plans ("the Add Alternate") at a fixed cost of$646,215.54 ("the Add Alternate Price"); and
WHEREAS, PEC's cost estimate for the construction of the White Road Improvements
in accordance with the Plans was$ was in excess of the Add Alternate Price; and
WHEREAS, construction of the White Road Improvements by the Developer instead of
the City would (1) allow the Developer to exercise the Add Alternate in the Developer's
Construction Contract and thereby promptly begin construction of the White Road
Improvements; (2) reduce the administrative and supervisory burdens on the City; (3) eliminate
potential scheduling and coordination conflicts involving the construction of improvements by
Developer eft within the Property Project and Clarke Road and by the City on White Road with
respect to the White Road Improvement; and (4) save public funds by economy of scale and
reduced start-up costs for the work to be performed by the Developer's Contractor; and
WHEREAS, in order to obtain the Add Alternate Price the Developer must so advise
the Developer's Contractor and issue a notice to proceed with respect to the Add Alternate by
March 8, 1996; and
WHEREAS, the City and the Developer agree that it is in the best interests of all parties
for the Developer, instead of the City, to construct the White Road Improvements in accordance
with the terms and conditions set forth below; and
3
WHEREAS, the City and the Developer desire to revise, amend and modify the
Development Agreement to set forth the obligations and responsibilities of each party thereto
with respect to the construction of the White Road Improvements and other matters related
thereto.
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. White Road Improvements.
(A) Notwithstanding anything contained in Part II.C. of the DRI Development
Order to the contrary, instead of the City constructing the White Road Improvements, the
Developer hereby agrees to construct the White Road Improvements in accordance with the plans
and specifications consisting of Sheets 1 through 44 as prepared by Professional Engineering
Consultants, Inc. under Job No. 0E242 and sealed by PEC on January 9, 1996, as they may be
modified by any change orders issued by the City Engineer.
(B) The City hereby approves the Developer's use of the Developer's
Contractor to construct the White Road Improvements; provided, however, that the Developer
shall provide the City with a letter from the Developer's Contractor confirming that it has agreed
to perform the White Road Improvements in accordance with the Plans for the Add Alternate
Price.
(C) The City represents to the Developer (1) that it has obtained r will
obtain prior to the commencement of construction of the White Road_ImprQvoment0 title
to all of the real property necessary for construction of the White Road Improvements, (2) that
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•
the Developer and the Developer's Contractor are authorized to utilize and rely on the Plans,
as they may be modified by any change orders issued by the City Engineer, in order to construct
the White Road Improvements, and (3) that all permits and governmental approvals necessary
for construction of the White Road Improvements in accordance with the Plans have been
obtained gr will be obtained by the City, at the City's expen ,
permits, the cost of which arc included in thc Add Alternate Price:
(D) The Developer agrees to commence construction of the White Road
Improvements within fourteen (14) days from the Effective Date and to thereafter proceed to
diligently complete construction of White Road Improvements in accordance with the Plans and
all applicable governmental permits and approvals; provided, however, that the City
acknowledges and agrees that the construction of the White Road Improvements will be
undertaken by the Developer concurrently with the construction of other improvements on witl.Lin
the Property Pr�oj.ect and Clarke Road related to the West Oaks Mall and that the Developer may
prioritize the work to be undertaken by the Developer's Contractor pursuant to the Developer's
Construction Contract in order to best accomplish the Developer's goal of obtaining a Certificate
of Occupancy for the West Oaks Mall by September 30, 1996.
(E) In consideration of the Developer's construction of the White Road
Improvements in accordance with the Plans, the City hereby agrees to pay to the Developer the
Add Alternate Price in the amount of $646,215.54lus the sum of $2.500.00 for the
maintenance bond required under the provisions of Section_21G1 hereof. Any cost
overruns under the Developer's Construction Contract with respect to the White Road
Improvements shall also be paid by the City to the Developer; provided, however, that the City
shall only be responsible for such cost overruns if the Developer has obtained the prior written
approval of the City Engineer with rsepect respect thereto, which approval will not unreasonably
5
be withheld. Any change orders issued to the Developer by the City Engineer which result in
a reduction in the Add Alternate Price to be paid by the Developer to the Developer's Contractor
shall also reduce the total amount paid by the City to the Developer for the White Road
Improvements, it being the intent of the parties that the total amount paid by the City to the
Developer for the construction of the White Road Improvements shall be equal to the amount
paid by the Developer to the Developer's Contractor for such improvements. nlus the cost of
the maintenance bond referenced in Section 2(G)(ii) hereof.-
• ..• . • . . , , .. (F) All payments by the
City for the White Road Improvements shall be by ajoint check made payable to the Developer
' . The City shall make such payments in accordance with the draw
schedule set forth in the Developer's Construction Contract, a copy of which has heretofore been
delivered to the City Engineer. Whenever payment is due under said draw schedule, the
Developer shall submit to the City a copy of the draw request submitted to the Developer by
Developer's Contractor on such forms as may be utilized by the Developer. All such draw
requests shall typically be submitted to the City by the 25111 15th day of each month and shall
be paid by the City no later than 30 days thereafter. The City shall not be required to pay to
the Developer the 10% retainage under the Developer's Construction Contract until such time
as final payment is made by the Developer to the Developer's Contractor for the White Road
Improvements. The Developer will obtain and deliver to the City lien waivers from the
Developer's Contractor and all subcontractors, and affidavits of the general contractor evidencing
payment in full of the amount of each draw request. The Developer shall at all times fully
comply with the terms and requirements of the State of Florida Construction Lien Law and shall
not allow any liens to attach to the property underlying the White Road Improvements
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(G) Upon completion of the White Road Improvements, the Developer shall
deliver the following to the City:
i) Bill of Sale for the White Road Improvements.
ii) Original two (2) year maintenance bond. The City will accept a
maintenance bond in the form set forth in the City's Land Development Code.
Alternatively, the City will accept a maintenance bond naming the City as a dual
obligee so long as the Developer assigns to the City its contract rights with the
Developer's Contractor under the Developer's Construction Contract as it relates
to the White Road Improvements and the Developer's Contractor acknowledges
such assignment.
iii) Two (2) sets of "as-built" drawings of the White Road
Improvements.
iv) A certification from the Developer's Contractor as to the final cost
of the White Road Improvements.
v) Engineer and surveyor certification letters in accordance with the
requirements of the City's Land Development Code; provided, however, that the
City will be responsible for obtaining these letters.
vi) Letter from St. Johns River Water Management District indicating
acceptance of any permitted work undertaken in accordance with the Plans;
provided, however, that the City shall be responsible for obtaining this letter.
vii) Final Release of Lien by Developer's Contractor evidencing full
payment of all sums due for the White Road Improvements; provided, however,
that this may be delivered concurrent with the final payment by the City to the
Developer.
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viii) Certificate of Completion issued by the City.
The City agrees to accept the White Road Improvements and make final payment (including
retainage) upon completion of the above-referenced items.
- ._ ._
(H) Nothing contained herein shall be construed to make the completion of the
White Road Improvements and the acceptance thereof by the City a condition precedent to the
issuance of a certificate of completion and/or certificate of occupancy for any other
improvements being constructed en within the Prepefty Pr, oject or Clarke Road in connection
with the West Oaks Mall Projeet.
(I) The City Engineer or his designee will be responsible for answering in a
timely manner any questions that the Developer's Contractor may have regarding the Plans and
the interpretation thereof.
SECTION 3. Construction Inspection Services. The City Engineer or his designee
shall be responsible for construction inspection services associated with the White Road
Improvements and the City acknowledges that the cost thereof is not included in the monies
being paid by the City to the Developer.
SECTION 4. Administrative Fee. In addition to the monies being paid by the City to
the Developer pursuant to Section 2 above, the City agrees to pay to the Developer an
administrative fee in the amount of three percent (3%) of the actual cost of the White Road
Improvements paid by the Developer to the Developer's Contractor; provided, however, that
said Administrative Fee shall not exceed $19,386.46 ("the Administrative Fee"). The
Administrative Fee shall be paid to the Developer at the time of final payment as provided in
Section 2(G) above. The Administrative Fee is intended to compensate the Developer for
handling contract administration, draw requests, and collecting lien waivers from the
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Developer's Contractor and for the costs of any additional liability insurance obtained in
connection with the White Road Improvements.
SECTION 5. No Liability for Plans. The Developer and the Developer's Contractor
shall not be responsible for and are not assuming any liability with respect to the design,
engineering and permitting of the White Road Improvements and the preparation of the Plans.
The parties hereto acknowledge that the Developer has not participated in the preparation of the
Plans.
SECTION 6. 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 7. Defined Terms. All capitalized terms not otherwise defined herein shall
have the meaning attributed to such term in the Development Agreement.
SECTION 8. 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 GGP/HOMART, INC., a
in the presence of: Delaware corporation
By:
Signature
Name:
Print/Type Name Title:
Dated: March , 1996
9
Signature (CORPORATE SEAL)
Print/Type Name
10
CITY:
CITY OF OCOEE, a Florida municipal
corporation
By:
Signature S. SCOTT VANDERGRIFT, Mayor
Attest:
Print/Type Name JEAN GRAFTON, City Clerk
Dated: March , 1996
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 March _, 1996
this day of March, 1996. UNDER AGENDA NO.
FOLEY & LARDNER
By:
City Attorney
11
STATE OF )
COUNTY OF )
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
, well known to me to be the
President of GGP/HOMART, INC., a Delaware corporation, and that he/she acknowledged
before me executing the same freely and voluntarily under authority duly vested in him/her on
behalf of said corporation. He/She [ ] is personally known to me or [ ] produced
as identification.
WITNESS my hand and official seal in the County and State last aforesaid this _ day
of , 1996.
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
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 March, 1996.
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):
C:\WPSI\DOCS\OCOE\HOMART2D.RED 13/5/961 DEBBIEH 1 PER:dh
12
•coee AGENDA 3-5-96
o : Item III E
►,: a a
0
011P
��*,f.Of 000•``a�6 JAMES W.SHIRR,P.E.
CITY ENGINEER/UTILITIES DIRECTOR
150 N.LAKESHORE DRIVE•OCOEE,FLORIDA 34761
PHONE(407)656-2322 EXT.142•FAX(407)656-7835
MEMORANDUM
DATE: March 1, 1996
TO: The Honorable Mayor and Board of City Commissioners
FROM: James W. Shira, P.E. //
City Engineer/Utiliti-. ,Director
SUBJECT: White Road Improvements
Attached for your review is a memorandum from the City Attorney dated March 1, 1996, as well
as a draft of a Second Amendment to Development Agreement between the City and GGP/Homart
(the Developer), all relating to the proposed White Road Improvements. A final version of this
Amendment will be submitted to you by the City Attorney at the City Commission meeting on
March 5, 1996.
In order to gain the benefit of the economy of scale afforded by the Developer's roadway
improvement construction contract, we included the White Road improvements as an Add
Alternate to the Developer's work. The Developer solicited bids for the Developer's work and
for the White Road improvements, which resulted in a fee of$646,215.54 for the White Road
improvements. Our original estimates for this project were in the range of$880,000.00, which
was therefore the amount that was set aside for this project. By utilizing this Add Alternate
process, we are able to save nearly $235,000.00.
During preparation of the plans for the White Road improvements, it became evident that there
was a "missing link" in the right-of-way. We anticipate that this right-of-way will have been
conveyed to the City prior to the City Commission meeting on March 5, 1996. With this
conveyance, all of the right-of-way for this project will be secured.
The Second Amendment to Development Agreement sets out the conditions by which
GGP/Homart will administer the White Road improvements as an Add Alternate to their roadway
construction contract. For this administrative work they will be paid 3% of the contract fee, or
$19,386.46.
7
THE PRIDE OF WEST ORANGE Fil--
In addition, there will be a road construction permit fee charged by the Building Department
amounting to$2,000.00 This amount should be transferred from the money allocated to the White
Road project to the appropriate General Fund account.
It is requested that the City Commission take the following action in regard to the White Road
realignment project:
1) Approve the Second Amendment to Development Agreement and authorize the
Mayor and City Clerk to execute it.
2) Authorize the transfer of $2,000.00 from Fund 300 (White Road) to the
appropriate General Fund account to cover the cost of the Building Department
road construction permit.
JWS/jbw
Attachment
MAR-01-96 13 : 56 FROM:FOLEY AND LARDNER ID: 648+ 1743 PAGE 1/2
FOLEY & LARDNER
ATTORNEYS AT LAW
SUITE 1800
111 NORTH ORANGE AVENUE A MEMBER OF GLOBAL-EX
ORLANDO, FLORIDA 32901 WITH MEMBER OFFICES IN
JACKSONVILLE BERLIN
TALLAHASSEE TELEPHONE (4071 423-7656 BRUSSELS
TAMPA FACSIMILE(407)648-1743 DRESDEN
WEST PALM BEACH FRANKFURT
MAILING ADDRESS
MILWAUKEE LONDON
MADISON POST OFFICE 50X 2193 PARIS
CHICAGO ORLANDO,FL 32802•2193
SINGAPORE
WASHINGTON,D.C. STUTTGART
TAIPEI
MEMORANDUM
TO: James W. Shira, P.E. , City Engineer
FROM: Paul E. Rosenthal, Esq. , City Attorney
DATE: March 1, 1996
RE: White Road: Second Amendment to Development Agreement
with GGP/Homart
Attached hereto is a draft of the Second Amendment to
Development Agreement between GGP/Homart, Inc. and the City.
GGP/Homart, Inc. is the successor to Homart Development Co. The
purpose of the Second Amendment is to shift the responsibility for
the White Road project from the City to Homart with the City
reimbursing Homart for all its expenses, including the cost of
construction. This shift will allow the City to take advantage of
the economies derived from the larger contract between GGP/Homart
and C.A. Meyer Paving and Construction. The Second Amendment is
still in the process of being finalized and the final draft will be
distributed at the City Commission meeting.
Highlights of the proposed Second Amendment are as
follows:
(1) GGP/Homart will construct the White Road Improvements in
accordance with the Plans prepared by PEC and approved by
the City Engineer. Change orders may be issued by the
City Engineer which can increase or decrease the cost of
the project.
(2) The City is responsible, at its expense, for obtaining
all governmental approvals and permits necessary for the
project.
(3) Homart will be paid a total of $646,215.54 as
reimbursement for its construction costs (subject to
adjustment based on change orders) . Payment will be made
by joint checks issued to GGP/Homart and C.A. Meyer.
ESTABLISHED 1 3 4 2
11AR -01-9E 12 57 FRCM : FOLEY AND LARDNER ID : 846+ 1743 PACE 2/e
James W. Shira, P.E. , City Engineer
March 1, 1996
Page 2
There will be a 10% retainage which will be paid when
final payment is made.
(4) Upon completion of the project, the improvements will be
conveyed by GGP/Homart to the City in the same manner as
other road projects.
(5) Completion of the White Road Improvements is not a
condition precedent to the opening of the Mall.
(6) The City will remain responsible for construction
inspection services.
(7) Homart will be paid an Administrative Fee of 3% of the
cost of construction, not to exceed $19,386.46.
(8) Since GGP/Homart did not participate in the development
of the Plans, they assume no liability with respect
thereto.
FEH—27-9Ei 09 54 FROM- FOLEY AND -ARDNER :D G4O+ i 7 4 3 PAGE 4/ 14
THIS INSTRUMENT PREPARED BY:
lutra Paul E.Rosenthal,Esq.
eGi11 F ARDI�
111l North
&I.th Orange Avenue,Suite 1800 n
past Office Bout 2193
ci Orlando,FL 32802-2193
t4 (407)423-7656
sikr AFTER RECORDING RETURN 1O:
Jean Grafton,City Clerk
ant OF OCOEE For Recording Purposes Only
150 North Lakeshore Drive
OrtOcoee,FL 34761
(407)656-2322
SECOND AMEMMENT TO DEVELOPMENT AGREEMENT
THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT(the "Second
Amendment') is made and entered into this _day of , 1996 (the "Effective
Date") by and between GGP/HOMART, INC., a Delaware corporation as the legal successor
to Homart Development Co., a Delaware corporation (hereinafter referred to as the
"Developer"), whose address is 3500 Piedmont Road, N.E., Atlanta, Georgia 30305 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_
WITNESSETH:
WHEREAS, the Developer is the legal successor to Homart Development Co. and 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 City and the Developer have heretofore entered into that certain
Development Agreement, dated January 26, 1995, as recorded on April 10, 1995 in Official
+ z ,cvri rvztz wu ..+<L1Yc1c x48. 1743 PACE S/14
Records Book 4877, Page 1880, as amended by that certain First Amendment to Development
Agreement, dated July 18, 1995, as recorded on July 31, 1995 in Official Records Book 4924,
Page 2466, all of the Public Records of Orange County,Florida(collectively, the"Development
Agreement"); and
WHEREAS, the Developer and the City have heretofore entered into that certain
Development Order for Lake Lotta Mall Development of Regional Impact (the "DRI
Development Order") dated January 27, 1995, relating to the proposed development of the
Property as set forth in the Development Agreement; and
WHEREAS, the Developer is currently constructing or is about to commence
construction of certain infrastructure, roadway and other improvements on the Property and
Clarke Road, said construction being pursuant to a certain construction contract ("the
Developer's Construction Contract") with C.A. Meyer Paving and Construction Co. (the
"Developer's Contractor"); and
WHEREAS, pursuant to Part IL C.2. of the DRI Development Order, the Developer has
heretofore paid to the City the sum of$250,000.00 to be applied by the City towards the design,
engineering, permitting and construction of such improvements to that portion of White Road
west of Clarke Road and adjacent to the Lake Lotta Center DRI as the City deems necessary to
reduce the curvature of White Road (the "White Road Improvements"); and
WHEREAS,the City has heretofore obtained from Professional Engineering Consultants,
Inc. ("PEC")certain plans consisting of Sheets 1 through 44 as prepared by PEC under Job No.
0E242 and sealed by PEC on January 9, 1996 (the "Plans"); and
WHEREAS, the Plans include the design and engineering and plans and specifications
for the White Road Improvements; and
2
-.- - �- - �. .. < va.c• r.vu LHKLi1VL1! ID-G48+ 1743 PACE E/ 1 4
WHEREAS, the Developer's Construction Contract includes as an "add alternate" the
construction of the White Road Improvements by the Developer's Contractor in accordance with
the Plans("the Add Alternate")at a fixed cost of$646,215.54("the Add Alternate Pricer); and
WH REAS, PEC's cost estimate for the construction of the White Road Improvements
in accordance with the Plans was $ ; and
WHEREAS, construction of the White Road Improvements by the Developer instead of
the City would (I) allow the Developer to exercise the Add Alternate in the Developer's
Construction Contract and thereby promptly begin construction of the White Road
Improvements; (2) reduce the administrative and supervisory burdens on the City; (3) eliminate
potential scheduling and coordination conflicts involving the construction of improvements by
Developer on the PropeLty and Clarke Road and by the City on White Road with respect to the
White Road Improvement; and (4) save public funds by economy of scale and reduced start-up
costs for the work to be performed by the Developer's Contractor; and
WHEREAS, in order to obtain the Add Alternate Price the Developer must so advise
the Developer's Contractor and issue a notice to proceed with respect to the Add Alternate by
March 8, 1996; and
WHEREAS, the City and the Developer agree that it is in the best interests of all parties
for the Developer, instead of the City, to construct the White Road Improvements in accordance
with the terms and conditions set forth below; and
WHEREAS, the City and the Developer desire to revise, amend and modify the
Development Agreement to set forth the obligations and responsibilities of each party thereto
with respect to the construction of the White Road Improvements and other matters related
thereto.
3
.,".. . � ♦ rill✓ LrKLIVGK 11.)' u4e3+1 743 PACE 7/ 14
NOW, TORE, 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. White Road hnprovements.
(A) Notwithstanding anything contained in Part H.C.of the DRI Development
Order to the contrary, instead of the City constructing the White Road Improvements, the
Developer hereby agrees to construct the White Road.Improvements in accordance with the plans
and specifications consisting of Sheets I through 44 as prepared by Professional Engineering
Consultants, Inc. under Job No. 0E242 and sealed by PEC on January 9, 1996, as they may be
modified by any change orders issued by the City Engineer.
(B) The City hereby approves the Developer's use of the Developer's
Contractor to construct the White Road Improvements; provided, however, that the Developer
shall provide the City with a letter from the Developer's Contractor confirming that it has agreed
to perform the White Road Improvements in accordance with the Plans for the Add Alternate
Price.
(C) The City represents to the Developer(1)that it has obtained title to all of
the real property necessary for construction of the White Road Improvements, (2) that the
Developer and the Developer's Contractor are authorized to utilize and rely on the Plans, as they
may be modified by any change orders issued by the City Engineer, in order to construct the
White Road Improvements, and (3) that all permits and governmental approvals necessary for
construction of the White Road improvements in accordance with the Plans have been obtained
4
FE8-27-9b' 09 S6 FROM- FOLEY AND LARDNER 1D-648+ 1743 PAGE 8/ 14
by the City, at the City's expense, except for the following permits, the cost of which are
included in the Add Alternate Price:
(D) The Developer agrees to commence construction of the White Road
Improvements within fourteen (14) days from the Effective Date and to thereafter proceed to
diligently complete construction of White Road Improvements in accordance with the PIans and
all applicable governmental permits and approvals; provided, however, that the City
acknowledges and agrees that the construction of the White Road Improvements will be
undertaken by the Developer concurrently with the construction of other improvements on the
Property and Clarke Road related to the West Oaks Mall and that the Developer may prioritize
the work to be undertaken by the Developer's Contractor pursuant to the Developer's
Construction Contract in order to best accomplish the Developer's goal of obtaining a Certificate
of Occupancy for the West Oaks Mall by September 30, 1996.
(E) In consideration of the Developer's construction of the White Road
Improvements in accordance with the Plans, the City hereby agrees to pay to the Developer the
Add Alternate Price-in the amount of$646,215.54. Any cost overruns under the Developer's
Construction Contract with respect to the White Road Improvements shall also be paid by the
City to the Developer, provided, however, that the City shall only be responsible for such cost
overruns if the Developer has obtained the prior written approval of the City Engineer with
rsepect thereto, which approval will not unreasonably be withheld. Any change orders issued
to the Developer by the City Engineer which result in a reduction in the Add Alternate Price to
be paid by the Developer to the Developer's Contractor shall also reduce the total amount paid
by the City to the Developer for the White Road Improvements, it being the intent of the parties
that the total amount paid by the City to the Developer for the construction of the White Road
5
r=ts-4/—tet. +U5t, t-veUM rULEY AND :_ARDNER :0 6413+ 1 743 PAGE 9/ 14
Improvements shall be equal to the amount paid by the Developer to the Developer's Contractor
for such improvements.
(F) Pursuant to the request of the Developer, all payments by the City for the
White Road Improvements shall be by a joint check made payable to the Developer and the
Developer's Contractor. The City shall make such payments in accordance with the draw
schedule set forth in the Developer's Construction Contract,a copy of which has heretofore been
delivered to the City Engineer. Whenever payment is due under said draw schedule, the
Developer shall submit to the City a copy of the draw request submitted to the Developer by
Developer's Contractor on such forms as may be utilized by the Developer. All such draw
requests shall typically be submitted to the City by the 25th day of each month and shall be paid
by the City no later than 30 days thereafter. The City shall not be required to pay to the
Developer the 10% retainage under the Developer's Construction Contract until such time as
final payment is made by the Developer to the Developer's Contractor for the White Road
Improvements. The Developer will obtain and deliver to the City lien waivers from the
Developer's Contractor and all subcontractors,and affidavits of the general contractor evidencing
payment in full of the amount of each draw request. The Developer shall at all times fully
comply with the terms and requirements of the State of Florida Construction Lien Law and shall
not allow any liens to attach to the property underlying the White Road Improvements
(G) Upon completion of the White Road Improvements, the Developer shall
deliver the following to the City:
i) Bill of Sale for the White Road Improvements.
ii) Original two (2) year maintenance bond. The City will accept a
maintenance bond in the form set forth in the City's Land Development Code.
Alternatively, the City will accept a maintenance bond naming the City as a dual
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FE8-27-96 09 . 57 FROM- FOLEY AND LARONER 1D-G48+1743 PAGE 10/14
obligee so long as the Developer assigns to the City its contract Nights with the
Developer's Contractor under the Developer's Construction Contract as it relates
to the White Road Improvements and the Developer's Contractor acknowledges
such assignment.
iii) Two (2) sets of was-built- drawings of the White Road
Improvements.
iv) A certification from the Developer's Contractor as to the final cost
of the White Road Improvements.
v) Engineer and surveyor certification letters in accordance with the
requirements of the City's Land Development Code;provided, however, that the
City will be responsible for obtaining these letters.
vi) Letter from St. Johns River Water Management District indicating
acceptance of any permitted work undertaken in accordance with the Plans;
provided, however, that the City shall be responsible for obtaining this letter.
vii) Final Release of Lien by Developer's Contractor evidencing full
payment of all sums due for the White Road Improvements; provided, however,
that this may be delivered concurrent with the final payment by the City to the
Developer.
viii) Certificate of Completion issued by the City.
The City agrees to accept the White Road Improvements and make final payment (including
retainage)upon completion of the above-referenced items. Final payment shall be by joint check
made payable to the Developer and Developer's Contractor. -
(H) Nothing contained herein shall be construed to make the completion of the
White Road Improvements and the acceptance thereof by the City a condition precedent to the
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1 U t3416+174PAGE i 1/ 14
issuance of a certificate of completion and/or certificate of occupancy for any other
improvements being constructed on the Property or Clarke Road in connection with the West
Oaks Mall Project.
(I) The City Engineer or his designee will be responsible for answering in a
timely manner any questions that the Developer's Contractor may have regarding the Plans and
the interpretation thereof.
SECTION 3. Cons ruction Inspection Services. The City Engineer or his designee
shall be responsible for construction inspection services associated with the White Road
Improvements and the City acknowledges that the cost thereof is not included in the monies
being paid by the City to the Developer.
SECTION 4. AdministrativeJce. In addition to the monies being paid by the City to
the Developer pursuant to Section 2 above, the City agrees to pay to the Developer an
administrative fee in the amount of three percent (3%) of the actual cost of the White Road
Improvements paid by the Developer to the Developer's Contractor, provided, however, that
said Administrative..Fee shall not exceed $19,386.46 ("the Administrative Fee"). The
Administrative Fee shall be paid to the Developer at the time of final payment as provided in
Section 2(G) above. The Administrative Fee is intended to compensate the Developer for
handling contract administration, draw requests, and collecting lien waivers from the
Developer's Contractor and for the costs of any additional liability insurance obtained in
connection with the White Road Improvements.
SECTION 5. No Liability for Plans. The Developer and the Developer's Contractor
shall not be responsible for and are not assuming any liability with respect to the design,
engineering and permitting of the White Road Improvements and the preparation of the Plans.
8
• �� < :yo . 5 5o rrcuri rui.cs ftrvU :..HKUNtK i ) 646+1743 PAGE 12, 14
The parties hereto acknowledge that the Developer has not participated in the preparation of the
Plans.
SECTION 6. 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 7. Defined Terms. All capitalized terms not otherwise defined herein shall
have the meaning attributed to such term in the Development Agreement.
SECTION 8. 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 GGPIHOMART, INC., a
in the presence of: Delaware corporation
By:
Signature
Name:
PrinuType Name Title:
Dated: , 1996
Signature (CORPORATE SEAL)
Printaype Name
9
t:b yb 1: 5d rKUt'1 FULLY AND LAKUNEK 11.) e34e4.1743 PAGE 13/ i4
CITY:
CITY OF OCOEE, a Florida municipal
corporation
By:
Signature S.SCOTT VANDERGRIFT,Mayor
Attest
Print/Type Name JEAN GRAFTON, City Clerk
Dated: March , 1996
Signanue
(SEAL)
Ptiat/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 March , 1996
this day of March, 1996. UNDER AGENDA NO.
FOLEY & LARDNER
By:
City Attorney
10
FE1 -27-96 09- St3 FROM FOLEY AND LARDNER ID 649+ 1743 PACE 14/ 14
STATE OF )
COUNTY OF )
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
, well known to me to be the
President of GGP/HOMART, INC., a Delaware corporation, and that he/she acknowledged
before me executing the same freely and voluntarily under authority duly vested in him/her on
behalf of said corporation He/She ( ] is personally known to me or ( ] produced
as identification.
'WITNESS my hand and official seal in the County and State last aforesaid this day
of , 1996.
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
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 March, 1996.
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):
11