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HomeMy WebLinkAboutVI (F) Sysco Food Services of Central Florida, Inc. - Developer AgreementCHICAGO JACKSONVILLE LOS ANGELES MADISON MILWAUKEE SACRAMENTO TO: FROM: DATE: RE: FOLEY & LARDNER A T T O R N E Y S A T L A W POST OFFICE BOX 2193 ORLANDO, FLORIDA 32802-2193 111 NORTH ORANGE AVENUE, SUITE 1800 ORLANDO, FLORIDA 32801-2386 TELEPHONE (407) 423-7656 FACSIMILE (407) 648-1743 WRITER'S DIRECT LINE The Honorable Mayor and City Commissioners of the City of Ocoee �nI Paul E. Rosenthal, Esq., City Attorney/l/C_ August 16, 1996 F;AGENDA 8-20-96 Item VI F,20 -96 J SAN DIEGO SAN FRANCISCO TALLAHASSEE TAMPA WASHINGTON D.C. WEST PALM BEACH Developer Agreement with Sysco Food Services of Central Florida, Inc. In connection with the Story Road/Kissimmee Avenue Project, the City staff has reached an agreement with Sysco Food Services for the donation of certain right-of-way and participation in a portion of the costs associated with the Project. The Developer Agreement has been reviewed and approved by City staff. It respectfully is recommended that the Mayor and City Commissioners approve the Developer Agreement between Sysco Food Services of Central Florida, ,Inc. and the City of Ocoee and authorize execution thereof by the Mayor and City Clerk. PER:dh Enclosure C:\WP51\DOCS\OCOEXMEMOS\PERDDHO8.161l8/16196 DEBBIEHIPER:dh ESTABLISHEDH E D 1 8 4 2 A MEMBER OF GLOBALEX WITH MEMBER OFFICES IN BERLIN, BRUSSELS, DRESDEN, FRANKFURT, LONDON, PARIS, SINGAPORE, STUTTGART AND TAIPEI Tars INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Paul E. Rosenthal, Esq. FOLEY & LARDNER 111 Notch Orange Avenue, Suite 1800 Post Office Boz 2193 Orlando, FL 32802-2193 (407) 423-7656 DEVELOPER AGREEMENT THIS DEVELOPER AGREE 1ENT ("this Agreement") is made and entered into this day of 1996 ("the Effective Date") by and between SYSCO FOOD SERVICES OF CENTRAL FLORIDA, INC., a Delaware corporation, having an address at 1177 West Loop South, Suite 1300, Houston, Texas 77027-9008 (hereinafter referred to as the "Developer") and the CITY OF OCOEE, a Florida municipal corporation, having an address at 150 N. Lakeshore Drive, Ocoee, Florida 34761 (hereinafter referred to as the "City"). WITNESSETH: WHEREAS, the Developer owns fee simple title to certain lands located in Orange County, 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 "Land"); and WHEREAS, the Land lies within the corporate limits of the City of Ocoee, Florida; and WHEREAS, the City intends to pursue a certain road improvement project known as the "Story Road/Kissimmee Avenue and Marshall Farms Road/Maguire Road Intersection Improvement Project" ("the Project") in order to address transportation, drainage and public safety issues within the City; and WHEREAS, the Project will benefit and aid in the development of the Land; and WHEREAS, in connection with the development of the Land and the construction of the Project, the City has requested that the Developer donate to the City certain lands required for the Project which are adjacent to the Project; and WHEREAS, the Developer has agreed to donate certain land adjacent to the Project provided that the City agrees to undertake certain improvements, on behalf of the Developer, at the Developer's expense; and WHEREAS, the parties hereto desire to address other issues relating to the development of the Land. 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. Section 2. Rip -,ht -of -Way Donations. A. Within thirty (30) days from the Effective Date, the Developer shall, at no cost or expense to the City, convey to the City marketable, fee simple title to (i) the east twenty (20) feet of the Land along the west side of Kissimmee Avenue from Story Road north to the north boundary line of the Land, and (ii) the south twenty (20) feet of the Land along the north side of Story Road from Kissimmee Avenue west to the west boundary line of the Land, all as depicted and highlighted in yellow on the sketch attached hereto as Exhibit "B" and by this reference made a part hereof, and (iii) that portion of the Land described in Exhibit "C" attached hereto and by this reference made a part hereof and identified thereon as Parcel 101 (the foregoing collectively hereinafter referred to as the "Right -of -Way Land"). Such conveyance of the Right -of -Way Land shall be by warranty deed free and clear of all liens and encumbrances, except for easements of record which are acceptable to the City, if any, and this Agreement. At the time of such conveyance (1) the Developer shall pay any recording fees and documentary stamp taxes relating to or resulting from the transfer of title to the City of the Right -of -Way Land, and (2) real property taxes in connection with the conveyances shall be prorated as of the day before the acceptance of the conveyances by the City and the prorated amount shall be paid by the Developer and shall be escrowed in accordance with the provisions of Section 196.295, Florida Statutes. B. Within twenty (20) days from the Effective Date, the Developer shall, at its sole cost and expense, provide the City with (i) metes and bounds legal descriptions, -2- including sketches of description, of the Right -of -Way Land which legal descriptions and sketches shall be subject to the review and approval of the City, and (ii) certification of ownership and encumbrances issued by a title insurance company acceptable to the City, in its discretion, evidencing the Developer's unencumbered ownership of the Right -of -Way Land or the provision of the appropriate releases. C. The Developer shall execute and deliver to the City such other documents as are typically required by the City in connection with the dedication and acceptance of a public road right-of-way. D. The conveyance of the Right -of -Way Land shall be at no cost or expense to the City. It is expressly agreed that the Right -of -Way Land is being donated to the City and that neither the Developer nor any person or entity shall be entitled to any Road Impact Fee credits with respect to the conveyance of the Right -of -Way Land. E. The City covenants and agrees that in connection with any future development of the Land that the impervious area and open space calculations utilized in reviewing any plans will consider gross land area prior to the conveyance of the Right -of -Way Land to the City. Section 3. Developer's Commitment. Prior to the issuance on any future building permits for any improvements to be constructed on the Land, but in no event later than the date the City enters into a construction contract for the Project (so long as the City gives Developer seven (7) days notice of such intended action), the Developer shall deliver to the City the amount of FIFTEEN THOUSAND and 00/100 DOLLARS ($15,000.00) in consideration for certain improvements to be made by the City to Story Road as well as traffic signalization improvements at the intersection of Story Road and Kissimmee Avenue (the "Developer's Commitment"). The Developer and City acknowledge and agree that (a) FIVE THOUSAND and 00/100 DOLLARS ($5,000.00) of the Developer's Commitment shall be in consideration of certain improvements to be made as part of the Project to the north side of Story Road including, but not limited to, the relocation of a certain drainage ditch and culverts as well as certain driveways located on the Land, and (b) TEN THOUSAND and 00/100 DOLLARS ($10,000.00) of the Developer's Commitment shall be in consideration of the Developer's share of the cost of installation of traffic signalization improvements at the intersection of Story Road -3- and Kissimmee Avenue to be made as part of the Project. The Developer acknowledges and agrees that the Project, the improvements to Story Road and the traffic signalization improvements at the intersection of Story Road and Kissimmee Avenue shall be made in such a manner and with good faith efforts to complete in accordance with the schedule established by the Ocoee City Commission. It is expressly agreed that neither the Developer nor any person or entity shall be entitled to any Road Impact Fee credits or other credits with respect to the payment of the Developer's Commitment. Section 4. Acquisition of Additional Land. A. In connection with the Project and in order to address traffic and public safety concerns, and subject to the provisions of Section 5(B) below, the City will undertake to acquire unencumbered fee simple title to certain additional land as depicted in green on Exhibit "B" attached hereto ("the Additional Land"), such Additional Land and any easements related thereto being necessary for the Project and future road improvements. B. In order to defray the cost of the acquisition of the Additional Land, the Developer agrees that it shall be responsible for all costs and expenses incurred by the City in connection with the acquisition of the Additional Land, including but not limited to the monies paid by the City to the property owners as compensation for the taking and/or acquisition of the Additional Land and any related easements (including any payments made to such property owners for severance damages), attorneys, appraisers, surveyors, engineers, and land planners fees and costs (whether incurred by the City or paid to the owners of the land to be acquired) (collectively, the "Additional Land Costs"). The City will proceed in good faith to acquire the Additional Land based upon the appraised value. C. The Developer shall promptly reimburse the City for the Additional Land Costs within thirty (30) days of receipt of an invoice for same or at such earlier date, in whole or in part, as the City may require in order to comply with a court order, consensual settlement or purchase agreement. The City will provide the Developer with documentation, reasonably requested, regarding the Additional Land Costs in order to demonstrate that such costs have been or will be incurred by the City. MIC D. Neither the Developer nor any person or entity shall be entitled to any Road Impact Fee credits with respect to the payment of the Additional Land Costs. Section 5. Expansion of Project. A. In order to realize the economies associated with the construction of the Project, the Developer has requested that the City, at the Developer's expense, design, engineer, permit and construct as part of the Project a northbound left -tum lane on Kissimmee Avenue providing for entry to the Land through the Developer's truck entrance located on Kissimmee Avenue and certain drainage improvements related thereto (collectively, the "Additional Project Improvements"). The Developer acknowledges that the design of the Additional Project Improvements will also require redesign of certain portions of the plans for the Project. Subject to the terms and conditions set forth herein, the City hereby agrees to design, engineer, permit and construct the Additional Project Improvements as part of the Project. B. The City shall provide the Developer with copies of the proposed plans for the Additional Project Improvements. The design of the Additional Project Improvements shall be subject to the review and approval of the Developer; provided, however, that if the Developer does not approve such design, then the City, at its option, may decline to construct the Additional Project Improvements. C. The Developer shall be responsible for all costs and expenses incurred by the City solely in connection with the Additional Project Improvements. The City will obtain estimates of the design, engineering, permitting and construction costs associated with the Additional Project Improvements, which estimates shall be subject to the approval of Developer, which approval will not unreasonably be withheld or delayed. The cost to the Developer of constructing the Additional Project Improvements shall be based on the unit cost bid price obtained by the City for the construction of the Project, including the Additional Project Improvements. It is estimated that the design, engineering and permitting fees will be $20,840.00 and that the construction costs will be $218,410.00 (including a 20% contingency). D. Prior to the City entering into an agreement for the design, engineering and permitting of the Additional Project Improvements, but in no event later than ten (10) days from the Effective Date, the Developer shall pay to the City the sum of $20,840.00 to be used by the City for the purposes of paying such costs as they become due. Prior to the City entering -5- into a construction contract for the Additional Project Improvements and within ten (10) days of written notice from the City, the Developer shall pay the City the bid price for the construction of the Additional Project Improvements such monies to be used by the City for the purposes of paying such construction costs as they become due. The Developer will be responsible to pay any change orders which affect the cost of construction of the Additional Project Improvements, such payment to be made within five (5) days of the receipt of written notice from the City. The City will be released of its obligation to construct the Additional Project Improvements if the Developer fails to make any payments within the timeframes set forth herein. At the conclusion of the Project when final payment has been made to the contractor and the Project improvements, inclusive of the Additional Project Improvements, have been accepted by the City, the City and Developer will reconcile all costs and expenses incurred by the City in connection with the Additional Project Improvements and within thirty (30) days thereafter any shortfall will be paid by Developer to the City and any excess payments made by the Developer will be refunded by the City to the Developer. 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 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 address set forth opposite the party's name below, or such other address or to such other person as the patty shall have specified by written notice to the other party delivered in accordance herewith: Developer: Sysco Food Services of Central Florida, Inc. 1177 West Loop South Suite 1300 Houston, Texas 77027-9008 With a Copy to: Sysco Food Services of Central Florida, Inc. 200 West Story Road Ocoee, Florida 34761 Attention: Stephen F. Smith, President City: City of Ocoee 150 N. Lakeshore Drive Ocoee, Florida 34761 Attention: City Manager -6- With a Copy to: Paul E. Rosenthal, Esq., City Attorney Foley & Lardner 111 North Orange Avenue Suite 1800 Orlando, Florida 32802-2193 Section 7. Covenant Running with the Land. This Agreement shall be binding, and shall inure to the benefit of the successors and assigns of the parties, and shall run with the Land and be binding upon the successors and assigns of the Developer and upon any person, firm, corporation, or entity who may become the successor in interest to the Land or any portions thereof. Section 8. Recordation of Agreement. The parties hereto agree that an executed original of this Agreement may be recorded, at the Developer's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Developer, execute and deliver letters affuining the status of this Agreement. Section 9. 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 10. Time of the Essence. Time is hereby declared of the essence of the lawful performance of the duties and obligations contained in this Agreement. Section 11. Agreement: Amendment. Except as hereinafter set forth, this Agreement constitutes the entire agreement between the parties, and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof. Amendments to and waivers of the provisions of this Developer Agreement shall be made by the parties only in writing by formal amendment. Section 12. 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 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 parry such further documents and instruments, in form and substance reasonably necessary, to confirm and/or effectuate the obligations of either party hereunder. -7- Section 14. Specific Performance. Both the City and the Developer shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 15. 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 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. Effective Date. The Effective Date of this Agreement shall be the date that the last of the parties to this Agreement has executed the same and such date shall be inserted on the front page of this Agreement. IN WT174ESS WHEREOF, the Developer and the City have caused this instrument to be executed as of the day and year above written. B Signed, sealed and delivered in the presence of: Printed Name: Printed Name: DEVELOPER: SYSCO FOOD SERVICES OF CENTRAL FLORIDA, INC. a Delaware corporation By: -8- Stephen F. Smith, President (CORPORATE SEAL) CITY: CITY OF OCOEE, FLORIDA, a Florida municipal corporation By: Printed Name: S. Scott Vandergrift, Mayor Yrmted Name: Attest: Jean Grafton, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of )1996. FOLEY & LARDNER By: City Attorney -9- APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 1996 UNDER AGENDA ITEM NO. 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 Stephen F. Smith the President of SYSCO FOOD SERVICES OF CENTRAL FLORIDA, INC., a Delaware corporation, who is [ ] personally known to me, or [ ] produced as identification, and who acknowledged before me executing the foregoing instrument on behalf of said corporation in the presence of two subscribing witnesses for the uses and purposes expressed therein freely and voluntarily under authority duly vested in him by said corporation. WITNESS my hand and official seal in the County and State last aforesaid this day of , 1996. Notary Signature (NOTARIAL SEAL) Printed Notary Signature Commission No.: 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, and well known 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 on behalf of said municipality in the presence of two subscribing witnesses for the uses and purposes expressed therein 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. (NOTARIAL SEAL) A:ISYSCODEV.HEWj8/W961SYSCO FOOD(D=1PER:jed -10- Notary Signature Printed Notary Signature Commission No.: 161T 1%611 C W F OW ZR O W K O� FF yJi2 Z 3nN3nV 33MVISSIM _ u:yse E p6� O a p kp j5 i 7 13 0 � s a � I • � I O a n I o�w 2V I Vd o y I o N I p = a x� WX I � IF- -� - -- - - i � a I W a i I — — — — — — — — — — — — — — — — I Mu NOMiL 3 RN -- ..--._ \ - - - ,j I I I I I L zuAL DESCRIPTION -- r is 1--[ 4cI, PARCEL 101 A PARCEL OF LAND LOCATED IN SCCTION 19, TOWNSHIP 22 SOUTH, RANG& 213 CAST BCING DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF THE SOUTHWEST OUARTCR OF THE NORTHEAST QUARTER OF SAID SECTIGN 19 FOR A POINT OF REFERENCE. THENCE RUIN NORTH 01000'02' EAST, ALONG THE EAST LINE OF SAID SOUTHWEST QUARTER OF THE NORTHEAST QUARTER. A OISTANC&• OF 02.09 FEET, THENCE RUN NORTH 00.53'50- WEST, 30.00 FEET TO A POINT LYING ON THE WEST RIGHT-OF-WAY LINE OF KISSIMMEE AVENUE AND THE POINT OF BEGINNING: THENCE RUN SOUTH 01 008'02' WEST. ALONG SAID WEST RIGIAT- OF-WAY LINE. 52.88 FEET TO THE POINT OF INTERSECTION WITH THE NORTH RIGHT -OF --WAY LINE OF STORY ROAD: THENCE RUN NORTH 09.59'55' WEST. ALONG SAID NORTH RIGIAT•OF-WAY UNE. 22.00 FEET: TFICNCC• RUN NORTH 24'19'59' EAST, 57.70 FEET TO THE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL OF LAND LIES IN THE CITY OF OCOCE. ORANGC COUNTY, FLORIDA AND CONTAINS 600 SQUARC FEET, MORE OR LESS. SURVEYOR'S NOTES: (1) REPROOUCTIONS OF THIS SKETCH ARE NOT VALID UNLESS SCALED WITH THE SURVEYOR'S EMBOSSED SEAL. (2) BEARINGS SHOWN HEREON ARE RELATIVE TO AN ASSUMED BEARING BASED ON THE EAST LINE OF THE SOUTHWEST QUARTER OF THE NORTHEAST OUARTER OF S&•CTiCN 13, TOWNSHIP 21 SOUTH. RANGE 28 EAST BEING NORTH 01'OG'02' CAST. (3) THE 'LEGAL OESCRIPTION' HEREON HAS BEEN PREPARED BY THE SURVEYOR AT THE CLIENT'S REQUEST. (4) THE 'LEGAL DESCRIPTION' HEREON IS IN ACCORD WITH THE INSTRUMCNTS OF RECORD INCLUDED WITHIN TITLE SEARCH PROJECT NO. 93.4519, AS PREPARED BY FIDELITY TITLE AND GUARANTY COMPANY AND SUPPLIEO TO THIS FIRM BY THE CLICNT. (5) THIS SKETCH DOES NOT REPRESENT A FIELD SURVEY, AS SUCH. N4111111 WE HEREBY CERTIFY THAT THIS LEGAL OESCIIPT10N IS TRUE AND CORRECT TO THE DEST OF OUR KNOWLECGE AND SEUEF AS PREPARED UNDER OUR DIRECTION IN JULY. 1393. WE FURTHER CERTIFY THAT THIS LEGAL DESCRIPTION MEETS THE MINIMUM TECHNICAL STANDARDS SCT FORTH IN RULE 21HH-8 (F.A.C.) ADOPTED BY THE FLORIDA BOARD OF LAND SURVEYORS, PURSUANT TO FLORIDA STATUTES 472.027. DA 10 A. WHITE. P.L.S. FLORIDA REGISTRATION NO. 4044 MCT£ r rHIS !.S Nor A SURVEY PEC!PROFESSIONAL ENGINEERING CONSULTANTS , INC. ' ingin0trs '0/inners Sur vIFyors Sri/o /16o Colo Toro cmiio too Coo/ Aolivaow Slioo/ Oi/o*so, F/or/Io Jzjo/ 407/41t-1061 Section /9 ; Township 22 South; Ronge 2,9 East JAr£I 7-20-93 A4£P. 9Y ? S. ORA WiV 9Y. /`//.•? j ..EJB :y0., OE-/.S0-2IG I -ARCEL SKETCH . P14.4C.EG /0). n Q v 20.00'OS'E /3.00' SGQG E. / •• -Sp ioi � N/.?• 03V46 -e-69.63 OOOr -- �WE.J7R/NIG/N6- ATa cv' �' SO/•06'02 tv JOIJ Vp/�Oa'Ol !S B?.Ov' 1. k-, W, N.E. W-Qrc.19•er-PO P O. C. ,�/mss/MMES AVENUE sEc. �9 •ra- �a G EOfs-NO .' R0. C. ... , Po..Y r OF CO�►/`►fNC.�s MG NY' R O. B. .... fiv/rT Of BE7�/NN/Np • . .... CENTERL.I/✓E G --a+.... .. LavE GZfcM�reY SO.F7.•.... ZOU44e FEe'r SHEET 2 OF 2 ANTE+ TN/S /S NOY A SURVEY 11 PEC/PROFESSIONAL ENGINEERING CONSULTANTS, . INC. 1179i,70," p/onnirs surrerors sella 1110 £ala Par! deli• 100 fail Relinivw sleaal • OrlaadlI, flarlds M801 10714zz-406! Section /9 ; Township 22 South ; Range 28 East Ort, 7-20-.9.3 I P4£P. 3r, P.S. 1 DRAWN BY: ,P. 7 ..OB NO+ 0E' -/90-2/G h h Ql •0�1 �� .� L-i.•.vPa-is-3.9-E- -379• yi ioi � N/.?• 03V46 -e-69.63 OOOr -- �WE.J7R/NIG/N6- ATa cv' �' SO/•06'02 tv JOIJ Vp/�Oa'Ol !S B?.Ov' 1. k-, W, N.E. W-Qrc.19•er-PO P O. C. ,�/mss/MMES AVENUE sEc. �9 •ra- �a G EOfs-NO .' R0. C. ... , Po..Y r OF CO�►/`►fNC.�s MG NY' R O. B. .... fiv/rT Of BE7�/NN/Np • . .... CENTERL.I/✓E G --a+.... .. LavE GZfcM�reY SO.F7.•.... ZOU44e FEe'r SHEET 2 OF 2 ANTE+ TN/S /S NOY A SURVEY 11 PEC/PROFESSIONAL ENGINEERING CONSULTANTS, . INC. 1179i,70," p/onnirs surrerors sella 1110 £ala Par! deli• 100 fail Relinivw sleaal • OrlaadlI, flarlds M801 10714zz-406! Section /9 ; Township 22 South ; Range 28 East Ort, 7-20-.9.3 I P4£P. 3r, P.S. 1 DRAWN BY: ,P. 7 ..OB NO+ 0E' -/90-2/G THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Paul E. Rosenthal, Esq. FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Post Office Boz 2193 Orlando, FL 32802-2193 (407) 423-7656 DEVELOPER AGREEN ENT THIS DEVELOPER AGREEMENT ("this Agreement") is made and entered into this day of , 1996 ("the Effective Date") by and between SYSCO FOOD SERVICES OF CENTRAL FLORIDA, INC., a Delaware corporation, having an address at 1177 West Loop South, Suite 1300, Houston, Texas 77027-9008 (hereinafter referred to as the "Developer") and the CITY OF OCOEE, a Florida municipal corporation, having an address at 150 N. Lakeshore Drive, Ocoee, Florida 34761 (hereinafter referred to as the "City"). WITNESSETH: WHEREAS, the Developer owns fee simple title to certain lands located in Orange County, 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 "Land"); and Florida; and WHEREAS, the Land lies within the corporate limits of the City of Ocoee, WHEREAS, the City intends to pursue a certain road improvement project known as the "Story Road/Kissimmee Avenue and Marshall Farms Road/Maguire Road Intersection Improvement Project" ("the Project") in order to address transportation, drainage and public safety issues within the City; and WHEREAS, the Project will benefit and aid in the development of the Land; and WHEREAS, in connection with the development of the Land and the construction of the Project, the City has requested that the Developer donate to the City certain lands required for the Project which are adjacent to the Project; and WHEREAS, the Developer has agreed to donate certain land adjacent to the Project provided that the City agrees to undertake certain improvements, on behalf of the Developer, at the Developer's expense; and WHEREAS, the parties hereto desire to address other issues relating to the development of the Land. 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. Section 2. Right -of -Way Donations. A. Within thirty (30) days from the Effective Date, the Developer shall, at no cost or expense to the City, convey to the City marketable, fee simple title to (i) the east twenty (20) feet of the Land along the west side of Kissimmee Avenue from Story Road north to the north boundary line of the Land, and (ii) the south twenty (20) feet of the Land along the north side of Story Road from Kissimmee Avenue west to the west boundary line of the Land, all as depicted and highlighted in yellow on the sketch attached hereto as Exhibit "B" and by this reference made a part hereof, and (iii) that portion of the Land described in Exhibit "C" attached hereto and by this reference made a part hereof and identified thereon as Parcel 101 (the foregoing collectively hereinafter referred to as the "Right -of -Way Land"). Such conveyance of the Right -of -Way Land shall be by warranty deed free and clear of all liens and encumbrances, except for easements of record which are acceptable to the City, if any, and this Agreement. At the time of such conveyance (1) the Developer shall pay any recording fees and documentary stamp taxes relating to or resulting from the transfer of title to the City of the Right -of -Way Land, and (2) real property taxes in connection with the conveyances shall be prorated as of the day before the acceptance of the conveyances by the City and the prorated amount shall be paid by the Developer and shall be escrowed in accordance with the provisions of Section 196.295, Florida Statutes. B. Within twenty (20) days from the Effective Date, the Developer shall, at its sole cost and expense, provide the City with (i) metes and bounds legal descriptions, -2- including sketches of description, of the Right -of -Way Land which legal descriptions and sketches shall be subject to the review and approval of the City, and (ii) certification of ownership and encumbrances issued by a title insurance company acceptable to the City, in its discretion, evidencing the Developer's unencumbered ownership of the Right -of -Way Land or the provision of the appropriate releases. C. The Developer shall execute and deliver to the City such other documents as are typically required by the City in connection with the dedication and acceptance of a public road right-of-way. D. The conveyance of the Right -of -Way Land shall be at no cost or expense to the City. It is expressly agreed that the Right -of -Way Land is being donated to the City and that neither the Developer nor any person or entity shall be entitled to any Road Impact Fee credits with respect to the conveyance of the Right -of -Way Land. E. The City covenants and agrees that in connection with any future development of the Land that the impervious area and open space calculations utilized in reviewing any plans will consider gross land area prior to the conveyance of the Right -of -Way Land to the City. Section 3. Developer's Commitment. Prior to the issuance on any future building permits for any improvements to be constructed on the Land, but in no event later than the date the City enters into a construction contract for the Project (so long as the City gives Developer seven (7) days notice of such intended action), the Developer shall deliver to the City the amount of FIFTEEN THOUSAND and 00/100 DOLLARS ($15,000.00) in consideration for certain improvements to be made by the City to Story Road as well as traffic signalization improvements at the intersection of Story Road and Kissimmee Avenue (the "Developer's Commitment"). The Developer and City acknowledge and agree that (a) FIVE THOUSAND and 00/100 DOLLARS ($5,000.00) of the Developer's Commitment shall be in consideration of certain improvements to be made as part of the Project to the north side of Story Road including, but not limited to, the relocation of a certain drainage ditch and culverts as well as certain driveways located on the Land, and (b) TEN THOUSAND and 00/100 DOLLARS ($10,000.00) of the Developer's Commitment shall be in consideration of the Developer's share of the cost of installation of traffic signalization improvements at the intersection of Story Road -3- and Kissimmee Avenue to be made as part of the Project. The Developer acknowledges and agrees that the Project, the improvements to Story Road and the traffic signalization improvements at the intersection of Story Road and Kissimmee Avenue shall be made in such a manner and with good faith efforts to complete in accordance with the schedule established by the Ocoee City Commission. It is expressly agreed that neither the Developer nor any person or entity shall be entitled to any Road Impact Fee credits or other credits with respect to the payment of the Developer's Commitment. Section 4. Acquisition of Additional Land. A. In connection with the Project and in order to address traffic and public safety concerns, and subject to the provisions of Section 5(B) below, the City will undertake to acquire unencumbered fee simple title to certain additional land as depicted in green on Exhibit "B" attached hereto ("the Additional Land"), such Additional Land and any easements related thereto being necessary for the Project and future road improvements. B. In order to defray the cost of the acquisition of the Additional Land, the Developer agrees that it shall be responsible for all costs and expenses incurred by the City in connection with the acquisition of the Additional Land, including but not limited to the monies paid by the City to the property owners as compensation for the taking and/or acquisition of the Additional Land and any related easements (including any payments made to such property owners for severance damages), attorneys, appraisers, surveyors, engineers, and land planners fees and costs (whether incurred by the City or paid to the owners of the land to be acquired) (collectively, the "Additional Land Costs"). The City will proceed in good faith to acquire the Additional Land based upon the appraised value. C. The Developer shall promptly reimburse the City for the Additional Land Costs within thirty (30) days of receipt of an invoice for same or at such earlier date, in whole or in part, as the City may require in order to comply with a court order, consensual settlement or purchase agreement. The City will provide the Developer with documentation, reasonably requested, regarding the Additional Land Costs in order to demonstrate that such costs have been or will be incurred by the City. -4- D. Neither the Developer nor any person or entity shall be entitled to any Road Impact Fee credits with respect to the payment of the Additional Land Costs. Section 5. Expansion of Project. A. In order to realize the economies associated with the construction of the Project, the Developer has requested that the City, at the Developer's expense, design, engineer, permit and construct as part of the Project a northbound left -turn lane on Kissimmee Avenue providing for entry to the Land through the Developer's truck entrance located on Kissimmee Avenue and certain drainage improvements related thereto (collectively, the "Additional Project Improvements"). The Developer acknowledges that the design of the Additional Project Improvements will also require redesign of certain portions of the plans for the Project. Subject to the terms and conditions set forth herein, the City hereby agrees to design, engineer, permit and construct the Additional Project Improvements as part of the Project. B. The City shall provide the Developer with copies of the proposed plans for the Additional Project Improvements. The design of the Additional Project Improvements shall be subject to the review and approval of the Developer; provided, however, that if the Developer does not approve such design, then the City, at its option, may decline to construct the Additional Project Improvements. C. The Developer shall be responsible for all costs and expenses incurred by the City solely in connection with the Additional Project Improvements. The City will obtain estimates of the design, engineering, permitting and construction costs associated with the Additional Project Improvements, which estimates shall be subject to the approval of Developer, which approval will not unreasonably be withheld or delayed. The cost to the Developer of constructing the Additional Project Improvements shall be based on the unit cost bid price obtained by the City for the construction of the Project, including the Additional Project Improvements. It is estimated that the design, engineering and permitting fees will be $20,840.00 and that the construction costs will be $218,410.00 (including a 20% contingency). D. Prior to the City entering into an agreement for the design, engineering and permitting of the Additional Project Improvements, but in no event later than ten (10) days from the Effective Date, the Developer shall pay to the City the sum of $20,840.00 to be used by the City for the purposes of paying such costs as they become due. Prior to the City entering -5- into a construction contract for the Additional Project Improvements and within ten (10) days of written notice from the City, the Developer shall pay the City the bid price for the construction of the Additional Project Improvements such monies to be used by the City for the purposes of paying such construction costs as they become due. The Developer will be responsible to pay any change orders which affect the cost of construction of the Additional Project Improvements, such payment to be made within five (5) days of the receipt of written notice from the City. The City will be released of its obligation to construct the Additional Project Improvements if the Developer fails to make any payments within the timeframes set forth herein. At the conclusion of the Project when final payment has been made to the contractor and the Project improvements, inclusive of the Additional Project Improvements, have been accepted by the City, the City and Developer will reconcile all costs and expenses incurred by the City in connection with the Additional Project Improvements and within thirty (30) days thereafter any shortfall will be paid by Developer to the City and any excess payments made by the Developer will be refunded by the City to the Developer. 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 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 address set forth opposite the party's name below, 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: Developer: Sysco Food Services of Central Florida, Inc. 1177 West Loop South Suite 1300 Houston, Texas 77027-9008 With a Copy to: Sysco Food Services of Central Florida, Inc. 200 West Story Road Ocoee, Florida 34761 Attention: Stephen F. Smith, President City: City of Ocoee 150 N. Lakeshore Drive Ocoee, Florida 34761 Attention: City Manager With a Copy to: Paul E. Rosenthal, Esq., City Attorney Foley & Lardner 111 North Orange Avenue Suite 1800 Orlando, Florida 32802-2193 Section 7. Covenant Running with the Land. This Agreement shall be binding, and shall inure to the benefit of the successors and assigns of the parties, and shall run with the Land and be binding upon the successors and assigns of the Developer and upon any person, firm, corporation, or entity who may become the successor in interest to the Land or any portions thereof. Section 8. Recordation of Agreement. The parties hereto agree that an executed original of this Agreement may be recorded, at the Developer's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Developer, execute and deliver letters affirming the status of this Agreement. Section 9. 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 10. Time of the Essence. Time is hereby declared of the essence of the lawful performance of the duties and obligations contained in this Agreement. Section 11. Agreement: Amendment. Except as hereinafter set forth, this Agreement constitutes the entire agreement between the parties, and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof. Amendments to and waivers of the provisions of this Developer Agreement shall be made by the parties only in writing by formal amendment. Section 12. 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 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. -7- Section 14. Specific Performance. Both the City and the Developer shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 15. 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 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. Effective Date. The Effective Date of this Agreement shall be the date that the last of the parties to this Agreement has executed the same and such date shall be inserted on the front page of this Agreement. IN WITNESS WHEREOF, the Developer and the City have caused this instrument to be executed as of the day and year above written. DEVELOPER: Signed, sealed and delivered SYSCO FOOD SERVICES OF CENTRAL in the presence of: FLORIDA, INC. a Delaware corporation 0 Printed Name: Printed Name: Stephen F. Smith, President (CORPORATE SEAL) Printed Name: Printed Name: FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this day of )1996. FOLEY & LARDNER City Attorney CITY: CITY OF OCOEE, FLORIDA, a Florida municipal corporation LA Attest: S. Scott Vandergrift, Mayor Jean Grafton, City Clerk (SEAL) APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 1996 UNDER AGENDA ITEM NO. 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 Stephen F. Smith the President of SYSCO FOOD SERVICES OF CENTRAL FLORIDA, INC., a Delaware corporation, who is [ ] personally known to me, or [ ] produced as identification, and who acknowledged before me executing the foregoing instrument on behalf of said corporation in the presence of two subscribing witnesses for the uses and purposes expressed therein freely and voluntarily under authority duly vested in him by said corporation. WITNESS my hand and official seal in the County and State last aforesaid this day of , 1996. Notary Signature (NOTARIAL SEAL) Printed Notary Signature Commission No.: 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 VANDERGRIFr, and JEAN GRAFTON, personally known to me, and well known 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 on behalf of said municipality in the presence of two subscribing witnesses for the uses and purposes expressed therein 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. (NOTARIAL SEAL) A:\SY9C0DEV.NEWI8/16/96ISYSC0 FOOD (DISK)IPER:jed MKIC Notary Signature Printed Notary Signature Commission No.: o str lar Iso• EI:NC{►1 IqT DCTEANIRCO Add t_(art l I 1 1 Exismc I E7Q':.I RETENTION II I 1 I ( A KEIENIK)N POND ` I PeONU �;i -- ••-/ ' Il /2 EIOSIItIG I BULGING93 i I I ( I GUARD STUCK ' I ... —.-- _... _.._� E:USIWG f PnVE TAE N I 1 / 67 1 - PROPOSED , I I II TRUCK PAIOtRAG - ' I I , r I iI I I COED DOCK ; I . • I I I I DOCK DUSTING PAVELEM I PROPOSED mN � I I I RE F60.025 SQ.E�. I WAREHOUSE p I REEZER I fc I I FRCEZEA ExiStwG U' 1 1 ss COO(ER f 1 uII!!�� , I I I I I FIIIUNEEXISANG _ C)USUNG t .cy1 fREF2ER I I PARKINGI ¢;I DRY WAROMSE 1 I u I I 08.420 SOFT. I 3 I I ; I � I I I I 1 PR li! I I � I FFj�-SER �mgN� 1 I ( I I I 17.22A SO.fi. I I IEXISTINGOFTXES I I �• 1 fuIUNE PROPOSED ""' DQ)CE //""�� DUSTING AUTPO PAR ►4G PONDMAO i . I l AUTO MIXING I AUTO PARKING 24.000 Sl.F.' 7 PARK.� 35.952 S&F �) I 1 v [[) ---------------------------------------- —_ ----- SIOAY ROAD .- - - - - R/V DEDICATION r0 CITY OF Ocucc 1 '1 Lam SYSCO RIGHT TURN LANE SYSCO tl FT TURN LANE R/V DEDICATION TO CIrY OF OCOCE PUROtASE AREA NEW STREET UGM I A 29673 Lr-,uAL DESCRIPTION C-X� ig I--[ It c to PARCEL 101 A PARCEL OF LAND LOCATED IN SCCTION 10. TOWNSHIP 22 SOUTH, RANGE 20 CAST BEING DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHEAST CORNER OF THE SOUTHWEST QUARTCR OF THE NORTHEAST QUARTER OF SAID SECTION 19 FOR A POINT OF REFERENCE: THENCE RUN NORTH 01'00'02' EAST, ALONG THE EAST LINE OF SAID SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, A DISTANCE OF 02.09 FEET: THENCE RUN NORTH 00.53'58- WEST, 30.00 FEET TO A POINT LYING ON THE WEST RIGHT-OF-WAY LINE OF KISSIMMEE AVENUE AND THE POINT OF BEGINNING: THENCE RUN SOUTH 01 000'02' WEST, ALONG SAID WEST RIGHT- OF-WAY LINE, 52.86 FEET TO THE POINT OF INTERSECTION WITH THE NORTH RIGHT-OF-WAY LINE OF STORY ROAD: THENCC RUN NORTH 09059'55- WEST, ALONG SAID NORTH RIGHT-OF-WAY LINE, 22.00 FELT; TFICNCC RUN NORTH 24.19'59' EAST. 57.70 FEET TO THE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL OF LAND LIES IN THE CITY OF OCOEE. ORANGC COUNTY, FLORIDA AND CONTAINS 600 SQUARE FEET, MORE OR LESS. SURVEYOR'S NOTES: (1) REPRODUCTIONS OF THIS SKETCH ARE NOT VALID UNLESS SCALED WITH THE SURVEYOR'S EMBOSSED SEAL. (2) BEARINGS SHOWN HEREON ARE RELATIVE TO AN ASSUMED BEARING BASED ON THE EAST LINE OF THE SOUTHWEST QUARTER OF THE NORTHEAST OUARTER OF SECTION 19, TOWNSHIP 22 SOUTH, RANGE 28 EAST BEING NORTH 01.00'02' CAST. (3) THE 'LEGAL DESCRIPTION' HEREON HAS BEEN PREPARED BY THE SURVEYOR AT THE CLIENT'S REQUEST. (4) THE'LEGAL DESCRIPTION' HEREON IS IN ACCORD WITH THE INSTRUMENTS OF RECORD INCLUDED WITHIN TITLE SEARCH PROJECT NO. 93.4519. AS PREPARED BY FIDELITY TITLE AND GUARANTY COMPANY AND SUPPLIED TO THIS FIRM BY THE CLICNT. (5) THIS SKETCH DOES NOT REPRESENT A FIELD SURVEY. AS SUCH. WE HEREBY CERTIFY THAT THIS LEGAL DESCRIPTION IS TRUE AND CORRECT TO THE BEST OF OUR KNOWLEDGE AND BELIEF AS PREPARED UNDER OUR DIRECTION IN JULY, 1993. WE FURTHER CERTIFY THAT THIS LEGAL DESCRIPTION MEETS THE MINIMUM TECHNICAL STANDARDS SCT FORTH IN RULE 21HH-6 (F.A.C.) ADOPTED BY THE FLORIDA BOARD OF LAND SURVEYORS, PURSUANT TO FLORIDA STATUTES 472.027. DAVID A. WHITE. P.L.S. FLORIDA REGISTRATION NO. 4044 SHEET / OF 2 AfOrF. rN/S 4Y NOT A SURVEY PECIOFESSIONA4:g�,ffofrs ENGINEERING CONSUL UN" , INC. 0lJnn#rs Surroyors $wit* 116o Eo/o Ofrk cmiro 100 £os/ Aol/eiow strio/ Or/0.9ao, florlds JlsO/ 40714!1-6061 Section /9 Township 22 South; Range 26 Eosl OATEN 7-20-93 -Awrp BY P. S. ORAWN BY /v/A x8 NO. -ARCEL SKETCH PARC.EG /O % /o/ OO-OO.OS"'E- /-7.00' QG4G E. / •• •,Sp 7 /N/.?9B •03'. 6-69.53' 000-t r wEs7 AW -1 41,V49 77 SO ' O !i►4A'C15G/0/ i 114 .4c ``NOr0a Ol'sS Bz. 09• E.t�T L.wE, s 1� c+e, /v.E. c�a SZfC. /fl•tP• PO ,�O.C. k/S.S/MMEE' AVG�'NU,E JC'C. /9 -I1'- Zd COrsM�NCGrMci�J' /SAO. B. .... �v.Yr O,� ftE�cvivvin�a Ri0,Vr- Of-- iJiv Y Sc • - • . .. CENTe-.4G,wE SO. FT.. , , , ,Sottq,vE FEST SNE6-T 2 OF 2 Aorr, TN/S !S NOT A SURVEY 11 PROFESSIONAL. ENGINEERING CONSULTANTS, , INC. PE(;1*nqin*4rrs p/onn*rs surrtyors Srlla 1160 rola Part Conlra ZOO L-ai/ Rao%n Jaw S/rii/ or/a.90a, Flor//a Jtso/ 407/4.P1 -806t Section /9 SAM 7-20-93 ; Township 2.2 South ; Range .28 Eost PR£P. sy t P. -6. ORAWN 6y: R. 7 , 08 NO: OE'- /90 - 2./G h � h h � h 778' L-/.•NP4•/9'�9'E -300 � � � / V. ♦ - /- / i V I /N/.?9B •03'. 6-69.53' 000-t r wEs7 AW -1 41,V49 77 SO ' O !i►4A'C15G/0/ i 114 .4c ``NOr0a Ol'sS Bz. 09• E.t�T L.wE, s 1� c+e, /v.E. c�a SZfC. /fl•tP• PO ,�O.C. k/S.S/MMEE' AVG�'NU,E JC'C. /9 -I1'- Zd COrsM�NCGrMci�J' /SAO. B. .... �v.Yr O,� ftE�cvivvin�a Ri0,Vr- Of-- iJiv Y Sc • - • . .. CENTe-.4G,wE SO. FT.. , , , ,Sottq,vE FEST SNE6-T 2 OF 2 Aorr, TN/S !S NOT A SURVEY 11 PROFESSIONAL. ENGINEERING CONSULTANTS, , INC. PE(;1*nqin*4rrs p/onn*rs surrtyors Srlla 1160 rola Part Conlra ZOO L-ai/ Rao%n Jaw S/rii/ or/a.90a, Flor//a Jtso/ 407/4.P1 -806t Section /9 SAM 7-20-93 ; Township 2.2 South ; Range .28 Eost PR£P. sy t P. -6. ORAWN 6y: R. 7 , 08 NO: OE'- /90 - 2./G