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HomeMy WebLinkAboutVI (B2) Florida Auction of Orlando: Development Agreement Agenda 9-19-2000 Item VI B 2 FOLEY & LARDNER MEMORANDUM CLIENT-MATTER NUMBER 020377-0544 TO: "fhe Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq., City Attorney DATE: September 13, 2000 RE: Florida Auto Auction Project#LS-00-008: Development Agreement As discussed at the September 7 Special Meeting, the Florida Auto Auction (the `Auction") is being required to execute a Development Agreement in connection with the City's review and approval of the preliminary/final site plan. Attached hereto is a draft of the proposed Development Agreement which has been revised to reflect the direction provided by the City Commission. Please note that the Development Agreement is still being reviewed by the Auction and it is likely that a revised draft will be presented for approval at the City Commission meeting. Highlights of the proposed Development Agreement arc as follows: (I) The Auction will donate right-of-way for Maguire Road, Marshall Farms Road and Story Road within thirty (30) days of receipt of a request from the City. The Auction will not receive any road impact fee credits or other compensation for the right-of-way. It is anticipated that the Auction will continue to own and maintain the future right-of-way until such time as it is required by the City for roadway improvements. (2) The Auction will contribute to the City the sum of $2,800,000 for the design, engineering, permitting and construction of Maguire Road as a four-lane divided arterial roadway from Mercantile Court to Story Road (the "Maguire Road Improvements"). This sum will be drawn on as needed for the Maguire Road Improvements. The Auction will be reimbursed the sum of$2,200,000 as certain specified lands developed, but in no event later than 8 years from the date of the Development Agreement. The sum of$600,000 will not be reimbursable and no road impact fcc credits will be provided in connection therewith. (3) The Development Agreement obligates the City to proceed with the Maguire Road Improvements and to commence construction thereof no later than 3 years from the date of the Development Agreement. To the extent that the cost of the �� 006 GTE.193707.1 E� Maguire Road Improvements exceed $2,800,000, it will be the financial responsibility of the City to fund any such excess costs. If the final costs are less than $2,800,000, it will have the effect of reducing the funds advanced by the Auction. (4) In consideration for the contribution for the Maguire Road Improvements, the Auction is not required to undertake any other roadway improvements except as expressly shown on the Plan. Similarly, the City is under no obligation to undertake any roadway improvements except for the Maguire Road Improvements. (5) Upon execution of the Development Agreement and approval of the Plan, a Final Certificate of Concurrency will be issued by the City. The Development Agreement provides that the Property will thereafter meet transportation concurrency for 10,662 daily trips for all uses currently permitted in the C-3 zoning district and that future uses of the Property consistent with C-3 zoning will not be subject to review for transportation concurrency purposes so long as the proposed use of the Property is not expected to generate more than 10,662 daily trips. (6) The proposed development of the Auction property may not exceed 24 auction lanes or 312,000 square feet. (7) In order to avoid any DRI issues, the Development Agreement contains a restriction that the development of the Property (when combined with the lands in Winter Garden and unincorporated Orange County) cannot contain more than 2,000 parking spaces and/or more than 256 acres. In the event these thresholds are exceeded, the Auction's property may be subject to review as a development of regional impact. Any such determination regarding DRI review would be made at a future date based upon the circumstances existing at that time. (8) The internal stormwater management system will he owned, maintained, repaired, inspected and operated by the Auction at its sole cost and expense. A monitoring program is established with certified reports provided to the City in order to assure that the stormwater management system continues to operate in accordance with the specifications and criteria submitted by the Auction to the City as part of the Plan approval. (9) The City requires that certain off-site drainage improvements be made as part of the Auction's project. The need for these improvements are not caused by the Auction's project, but it is cost effective to undertake the improvements in connection with the Project. The Auction has agreed to incorporate these improvements into the Plans in consideration of the agreement of the City to provide a I-year waiver from any increased stormwater fees occurring as a result of the Project. 006.193707.1 -2 (10) As discussed at the City Commission meeting, it is necessary for there to be an amendment to the Land Development Code in order for the Auction to proceed with the piping of the portion of the Property located with the 100-year flood plain as called for by the proposed Plan. The Development Agreement provides that in the event the LDC Amendment is not adopted by October 17, 2000, then the Auction would have the unilateral right to terminate the Development Agreement in which case all plan approvals and permits issued pursuant thereto would be withdrawn. The City staff recommends approval of the Development Agreement. RECOMMENDATION: It respectfully is recommended that the City Commission approve the Development Agreement between Manhaeim Remarketing, LP and the City with respect to Project #LS-00-008 with such additional revisions as may be presented at the City Commission meeting and authorize execution thereof by the Mayor and City Clerk. PhR/jh Enclosure 006.193707.1 -� THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: 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 For Recording Purposes Only RETURN TO: lean Grafton,City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee,FL 34761 (407)656-2322 DEVELOPMENT AGREEMENT (Florida Auto Auction of Orlando: Project No. LS-00-O98) THIS DEVELOPMENT AGREEMENT ("this Agreement") is made and entered into as of the day of September, 2000 by and between MANHAEIM REMARKETING, LP a limited partnership, whose mailing address is (hereinafter referred to as the "Owner") and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761, Attention: City Manager (hereinafter referred to as the "City"). WITNESSETH: WHEREAS, the Owner owns fee simple title to certain lands located in Orange County. Florida, and within the corporate limits of the City of Ocoee, Florida, consisting of acres, more or less, 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 Owner currently operates on the Property a motor vehicle wholesale business along with associated outdoor storage and accessory support uses (the "Existing Business"); and WHEREAS, the Owner desires to make certain improvements to the Property as more particularly described in this Agreement (the `Improvements") for the purpose of improving and expanding the Existing Business (the "Expanded Business"); and DRAFT-09/13/00 006.191314.4 WHEREAS, the Existing Business as affected by the Expanded Business is herein sometimes referred to as the "Proposed Business Operations"; and WHEREAS, in order to undertake the Improvements it is necessary, under the provisions of the City's Land Development Code, for Owner to seek and obtain approval of a final site plan for the Property which site plan encompasses both the Existing Business and the changes thereto caused by the Expanded Business; and WHEREAS, the construction of the Improvements for the purpose of conducting the Proposed Business Operation is herein referred to as the "Project"; and WHEREAS, the Owner also operates the Existing Business on adjacent or nearby lands located within the City of Winter Garden, Florida, which lands are not part of the Project and are not subject to any of the terms, conditions and provisions of this Agreement; and WHEREAS, the Owner has applied to the City for approval of a preliminary/final site plan which includes as part thereof a master land use plan for the Property and which incorporates the Improvements and the Proposed Business Operations; and WHEREAS, pursuant to the application of the Owner, on September, 2000 the Ocoee City Commission approved, subject to the execution of this Agreement, the Preliminary/Final Site Plan for Manheim's Auto Auction, as prepared by GTC Engineering Corporation under Job No. AAO-1 and being date stamped as received by the City on September, 2000, with such additional revisions thereto, if any, as may be reflected in the minutes of said City Commission meeting (the "Plan"); and WHEREAS, the Plan sets forth the specific Improvements proposed by Owner to be constructed in connection with both the Proposed Business Operations; and WHEREAS, in connection with the approval of the Plan and the construction of the Improvements it is necessary for Owner to comply with the City's Concurrency Management System as set forth in the City's Land Development Code; and WHEREAS, the Project is not expected to generate road impact fees sufficient to mitigate the transportation impact of the Project and the Proposed Business Operations; and WHEREAS, the Owner and the City desire to execute this Agreement in order to evidence their mutual agreement as to certain matters related to the construction of the Improvements on the Property, the approval of the Plan, and the improvements necessary in order for the Plan to comply with the City's Concurrency Management System. 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: 006.191314.4 -2 Section 1. Recitals. The above recitals are true and correct and incorporated herein by this reference. Section 2. Conveyance of Right-of-Way. (A) Within thirty (30) days following receipt of written notice from the City requesting the same, the Owner shall dedicate and convey to the City: (i) a twenty (20) foot wide strip of land within the Property along the boundary thereof that abuts Maguire Road; (ii) a forty (40) foot wide strip of land within the Property along the boundary thereof that abuts Marshall Farms Road; (iii) a forty (40) foot wide strip of land within the Property along the boundary thereof that abuts the south side of Story Road, and (iv) additional land adjacent to the aforementioned lands as the City may reasonably determine to he needed in order to provide turning radi and safe site triangles at roadway intersections; (hereinafter collectively referred to as the "Rightof-Way Land"). Any such request for the conveyance of all or a portion of the Right-of-Way Land shall be accompanied by a legal description and sketch of description prepared by the City, at its expense, which will be certified by the surveyor to both the City and Owner. The Right-of-Way Land shall be conveyed by the Owner to the City by warranty deed free and clear of all liens and encumbrances except for those matters acceptable to the City. The form of the warranty deed shall be subject to the approval of the City. Prior to the conveyance of the Right-of-Way Land, the Owner shall be solely responsible for the Right-of-Way Land, including the maintenance thereof. (B) The Owner shall, contemporaneously with the dedication and conveyance of the Right-of-Way Land to the City, provide to the City a current attorney's opinion of title (or a current title commitment to be followed by a policy of title insurance) evidencing that fee simple title to the Right-of-Way Land is vested in Owner free and clear of all liens and encumbrances except for those matters acceptable to the City. The costs and expenses related to the conveyance and dedication of the Right-of-Way Land, including the cost of title work, shall be borne solely by the Owner. Real property taxes on the Right-of- Way Land shall be prorated as of the day before the City's acceptance of the dedication and conveyance of the same, and the prorated amount of such real property taxes attributable to the Owner shall be paid and escrowed by the Owner in accordance with the provisions of Section 196.295, Florida Statutes; provided, however, that if the conveyance occurs between November 1 and December 31, then Owner shall be responsible for the real property taxes for the entire year. (C) The City may from time-to-time request that the Owner convey the Right-of-Way Land, or a portion thereof, to the City based solely upon the City's 006.191314.4 -3 determination, in its discretion, of the current need for the Right-of-Way Land or any portion thereof. (D) Neither the Owner nor any other person or entity shall be entitled to any road impact fee credits or other compensation of any kind for, on account of, or with respect to the conveyance of the Right-of-Way Land to the City. Section 3. Development of the Property. (A) The Owner hereby agrees to develop the Property and the Project in accordance with the Plan. The Plan is hereby incorporated herein by reference as if fully set forth herein. (B) The Owner hereby agrees that the Property and the Project shall he developed in accordance with and is made subject to those certain Conditions of Approval attached hereto as Exhibit "B" and by this reference made a part hereof (the "Conditions of Approval"). The Owner further agrees to comply with all of the terms and provisions of the Conditions of Approval. The Conditions of Approval attached hereto as Exhibit "B" are the same as the Conditions of Approval set forth in the Plan. Section 4. Waivers from the Ocoee Land Development Code. As part of the approval of the Plan, the Owner has been granted waivers from the requirements of the Ocoee Land Development Code, said waivers being set forth in Exhibit "C" attached hereto and by this reference made a part hereof. Section 5. Maguire Road Improvements. (A) The parties hereto agree that in order for the Project to be developed in compliance with requirements of Article IX of the City's Land Development Code, entitled Concurrency, it is necessary that Maguire Road from Mercantile Court to Story Road be designed, engineered, permitted and constructed as a 4-lane divided arterial roadway (the "Maguire Road Improvements"). The estimated Maguire Road Improvement Project Costs are $2,800,000.00. For the purposes hereof, "Maguire Road Improvement Project Costs" are defined as the costs incurred by the City in designing, engineering, permitting, bidding, inspecting and constructing the Maguire Road Improvements and acquiring right-of-way, retention pond lands, easements, and other real property interests for the Maguire Road Improvements, including without limitations, engineering, consulting, appraisal, and attorneys' fees and, if necessary, condemnation awards, damages, costs, and expenses (including attorneys' fees and costs which may be awarded in connection therewith). The City has advised Owner that the City has no current plans to construct the Maguire Road Improvements. The Owner has requested that the City design, engineer, permit and construct the Maguire Road Improvements and commence construction thereof within three (3) years from the date of this Agreement and, subject to the terms, conditions and limitations set forth herein, the City has agreed to Owner's request. -4-006.191314.4 (B) As a material inducement to the City to approve the Plan and agree to design, engineer, permit and construct the Maguire Road Improvements and commence construction thereof within three (3) years from the date of this Agreement, the Owner hereby agrees to pay to the City an amount of money equal to the Maguire Road Improvement Project Costs not to exceed a maximum payment of $2,800,000.00 (the "Owner Monetary Contribution"). Neither the Owner nor any other person or entity shall be entitled to any road impact fee credits or other compensation of any kind for, an account of, or with respect to the first $600,000.00 of the Owner Monetary Contribution, it being agreed that such amount is being voluntarily contributed by Owner to mitigate the transportation impacts arising from the Project. (C) To the extent that the Owner Monetary Contribution exceeds $600,000.00 (such amount in excess of $600,000.00 being herein referred to as the "Reimbursable Amount"), the City will reimburse the Owner, without interest, in accordance with the schedule set forth below: Road impact fees from the development of the Property and the lands depicted in Exhibit "D" hereto will be used by the City to reimburse the Owner a dollar amount equal to the dollar amount of the road impact fees received by the City with respect to such lands and such payments shall reduce the balance of the Reimbursable Amount owed by the City to the Owner. The foregoing payments shall be made from time-to-time by the City within sixty (60) days of receipt of such road impact fees. Alternatively, if the Owner has not paid to the City the sum of $600,000.00 at the time of receipt of such road impact fees by the City, then the maximum Owner Monetary Contribution will be reduced by the amount of such road impact fees. ii. Eight (8) years from the Effective Date of this Agreement, the City will reimburse the Owner the unreimbursed portion of the Reimbursable Amount. The total Reimbursable Amount to be paid by the City to the Owner shall be equal to the difference between the Owner Monetary Contribution actually paid to the City and $600,000.00. Notwithstanding any provision contained herein to the contrary, the foregoing shall not be considered to be a pledge of road impact fees, but is intended only to address the timing of the City's obligation to pay to the Owner the Reimbursable Amount or portions thereof. (D) The Owner Monetary Contribution will be paid by Owner to the City in accordance with the following schedule: A sum equal to the amount payable by the City under any contracts for the design, engineering, permitting and/or construction of the Maguire Road Improvements will be paid by Owner to the City within twenty (20) days of receipt by Owner of written notice from the City accompanied by a 006.191314.4 -5 copy of such contract setting forth the amount payable by the City thereunder; provided, however that any such contract may provide that it shall not be binding on the City until such time as the aforementioned payment is received from Owner. ii. The Owner shall reimburse the City for any Maguire Road Improvement Project Costs incurred by the City within twenty (20) days of receipt of an invoice from the City; provided, however, that the City will not invoice Owner for any such costs which have been advance funded by Owner pursuant to Subsection (D)(ii) above. All funds received by City from Owner pursuant to this Section will be separately accounted for by the City and shall be used exclusively to pay for or reimburse the City for the Maguire Road Improvement Project Costs. It is agreed that the decision of the City as to what constitutes Maguire Road Improvement Project Costs shall be conclusive and binding on Owner. (E) Any monies due from Owner to City pursuant to this Section which are not received by the City by the due date set forth in this Section shall bear interest at the rate of 18% per annum from the due date thereof to the date of receipt of payment by the City. (F) Except for the Maguire Road Improvements, the City shall have no obligation whatsoever to make any other roadway improvements in connection with the Project and the Proposed Business Operations. To the extent that the cost of the Maguire Road Improvements exceeds the maximum amount of the Owner Monetary Contribution, the Owner shall have no financial responsibility with respect thereto. (G) Except as otherwise set forth herein or on the Plan, the Owner shall have no obligation to make any other roadway improvements in order to proceed with the Project. Section 6. Concurrency. (A) Prior to the approval of the Plan and this Agreement the Owner has applied for a Final Certificate of Concurrency for the development of the Property in accordance with the Plan (the "Final Certificate of Concurrency"). The City agrees to promptly issue the Final Certificate of Concurrency following approval of the Plan and this Agreement. (B) It shall be the responsibility of Owner to commence construction of the Improvements prior to the expiration of the Final Certificate of Concurrency or any extensions thereof which may be issued pursuant to the provisions of the Ocoee Land Development Code. The City makes no warranty or representation regarding the ability of the Owner to obtain a new Final Certificate of Concurrency should Owner fail to commence construction of Improvements prior to the expiration of the Final Certificate of Concurrency. 006.191314.4 _6 (C) The City represents to the Owner that the development of the Improvements and Proposed Business Operations will not be subject to further concurrency review under the City's Comprehensive Plan and Land Development Code so long as the Owner commences construction of Improvements in accordance therewith prior to the expiration of the Final Certificate of Concurrency. Subject to the provisions of Section 6(D) below, the foregoing shall not be construed to exempt the Property from future concurrency review in the event the Property is utilized for purposes other than the Proposed Business Operations or in the event the Owner proposes a substantial change to the Plan. (D) The City and Owner agree that based upon a traffic study submitted by the Owner to the City the Proposed Business Operation is expected to generate up to 10,662 daily trips. In consideration for the agreements of the Owner set forth in this Agreement, the City agrees that the Property meets transportation concurrency for 10,662 daily trips for all uses currently permitted in the City's C-3 General Commercial Zoning District and that future uses of the Property consistent with said C-3 Zoning District will not be subject to review for transportation concurrency purposes so long as the proposed use of the Property is not expected to generate more than 10,662 daily trips. Section 7. Development Limitation Based on Transportation Impact. Notwithstanding any provision contained herein to the contrary, the Property and the Project shall not be developed: (1) with more than twenty-four (24) auction lanes, and/or (2) in such a manner that the total square footage of the building area and auction lanes area (inclusive of building area for support services) on the Property exceed 312.000 gross square feet. The parties hereto recognize that the proposed development of the Property and the Project has been determined to meet the City's requirements for transportation concurrency based on the Plan and that, subject to the provisions of Section 6 above, a more intense development of the Property or a different development program could adversely affect the transportation concurrency review undertaken by the City in connection with the issuance of the Final Certificate of Concurrency. Section 8. Development of Regional Impact Review. The City has determined, based on information provided by Owner, that the Property and the Project when aggregated with the Owner's adjacent and nearby business operations in the City of Winter Garden and/or unincorporated Orange County contains less than 2,000 parking spaces and less than 256 acres of land and is therefore not subject to review as a development of regional impact under the provisions of Section 380.06, Florida Statutes, in order for the Owner to construct the Improvements and operate the Proposed Business Operations. Nothing contained herein shall he construed to exempt the Property from future review as a development of regional impact in the event of a change of use or should additional parking spaces and/or acres be added subsequent to the date of this Agreement which result in the Property and the Project (when aggregated with the Owner's adjacent and nearby business operations in the City of Winter Garden and/or unincorporated Orange County) containing more than 2,000 parking spaces and/or more than 256 acres of land; provided, however, that under such circumstances the Owner reserves its right to object to any finding that it is subject to review as a development of regional impact. -7 006.191314.4 Section 9. Stormwater Management System. (A) The Stormwater Management System for the Property, including but not limited to stormwater ponds, pipes, ditches and culverts (the "SMS") shall be owned, maintained, repaired, inspected and operated by the Owner, at Owner's sole cost and expense. The existing SMS provides for the conveyance of existing limited drainage from off-site as appropriate, but not for storage. Following completion of the Improvements, the SMS shall continue to provide for the conveyance of existing limited drainage from off-site as appropriate, but not for storage. In order for the City to confirm that the SMS will continue to provide the conveyance from off-site, as well as the conveyance of drainage from within the Property, the owner, at Owner's expense, shall employ a Florida registered professional engineer who shall perform an inspection of the SMS between January 1 and February I of each year and who shall deliver to the City by March 1 of each year a sealed report certified to the City, on a form reasonably acceptable to the City, certifying the current condition of the SMS and the results of the inspection. The report shall identify any required maintenance or repair which needs to be undertaken in order to assure that the SMS continues to operate in accordance with the specifications and criteria submitted by Owner to the City as part of the approval of the Plan. (B) If the City at any time reasonably concludes that the SMS is not being satisfactorily maintained, repaired, inspected and/or operated by Owner, then the City shall give the Owner written notice thereof and the Owner shall complete the required corrective action within 30 days from receipt of such notice. If Owner fails to take corrective action within said 30-day period or if the City determines that there exists an immediate danger to the public health, safety and welfare for which the Owner is not taking appropriate action, then the City may, but shall be under no obligation to do so, at the Owner's expense, enter upon the Property (or cause its consultants and contractors to enter upon the Property) and take such corrective action as the City may reasonably determine to be necessary. The Owner shall reimburse the City for any such expenses within 20 days of receipt of an invoice from the City. Any past due reimbursements shall bear interest at the rate of 18% per annum. If it becomes necessary for the City to pursue collection efforts, then the City shall be entitled to receive its reasonable attorneys' fees, paralegal fees and costs. Section 10. Stormwater Utility Fee and Off-Site Stormwater Improvements. (A) The Owner has agreed as part of the Project to, at Owner's expense, design, engineer, permit, construct and install the following off-site drainage improvements: (i) double 48-inch RCP's under Story Road, and (ii) double 60-inch RCP's under Marshall Farms Road (collectively, the "Off-Site Drainage Improvements"). The parties acknowledge that Owner's application for a St. Johns River Water Management Permit (the "SJRWMD Permit") does not include the Off-Site Drainage Improvements and that it will be necessary for Owner to modify its construction plans. Following issuance of the SJRWMD Permit, the Owner shall prepare, submit and diligently pursue, at Owner's expense, an application to modify the SJRWMD Permit in order to add the Off-Site Drainage Improvements. The City 006.191314.4 -8 shall receive a copy of all such submittals to the SJRWMD. A copy of the modified SJRWMD Permit shall be provided to the City when issued. (B) The parties hereto recognize that the Property will be subject to increased stormwater utility fees under the provisions of Chapter 150 of the Ocoee City Code due to the increase in impervious area under the Plan (the "Increased Stormwater Utility Fees"). In consideration of the Owner's agreement as set forth in Section 10(A) above, the City hereby agrees to waive the Increased Stormwater Utility Fees for a period of one (1) year from the date on which the Increased Stormwater Utility Fees would otherwise be imposed on the Property. Section 11. 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 other party at the address appearing on the first page of this Agreement, or (ii) when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address appearing on the first page of this Agreement, or such other person or address as the party shall have specified by written notice to the other party delivered in accordance herewith. Section 12. Covenant Running with the Land. This Agreement shall run with the Property and inure to and be for the benefit of the parties hereto and their respective successors and assigns and any person. firm, corporation, or entity who may become the successor in interest to the Property or any portion thereof. Section 13. Recordation of Agreement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at the Owner's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Owner, execute and deliver letters affirming the status of this Agreement. Section 14. 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 15. Time of the Essence. Time is hereby declared of the essence to the lawful performance of the duties and obligations contained in this Agreement. Section 16. Agreement; Amendment. This Agreement constitutes the entire agreement between the parties. and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof. Amendments to and waivers of the provisions of this Agreement shall he made by the parties only in writing by formal amendment. Section 17. Further Documentation. The parties agree that at any time following a request 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. 006.191314.4 _9 Section 18. Specific Performance. Both the City and the Owner shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 19. 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 he 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 20. 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 21. 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 22. 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 so long as the purpose and intent of this Agreement can still be achieved. Notwithstanding any provision contained herein to the contrary, in the event the provisions of Section 2 and/or Section 5 hereof are invalidated, then the City expressly reserves the right to revisit the approval of the Plan and the issuance of the Final Certificate of Concurrency in light of such circumstances. Section 23. Effective Date. The Effective Date of this Agreement shall be the day and year first above written so long as the purpose and intent of this Agreement can still be achieved. Section 24. Owner's Right of Termination. Notwithstanding any provision contained herein to the contrary, in the event the City fails to adopt the proposed amendment to the Land Development Code in substantially the form attached hereto as Exhibit "E" (the "LOC Amendment") by October 17, 2000, then in such event the Owner, at its option, may elect by written notice to the City delivered on or before November 1, 2000 to terminate this Agreement in which case all approvals of the Plan (and all permits issued pursuant thereto) shall be deemed to be withdrawn and this Agreement shall be of no further force and effect. If the Owner fails to give notice by such date, it shall be deemed to have waived its right of termination under this Section. 006.191314.4 -10- IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be executed by their duly authorized officers as of the day and year first above written. Signed, sealed and delivered OWNER: in the presence of: a corporation Print Name By: Name: Its: Print Name (CORPORATE SEAL) STATE OF COUNTY OF I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared as the of , a corporation, who [ I is personally known to me or [ I produced as identification, and that he/she acknowledged executing the same on behalf of said corporation in the presence of two subscribing witnesses, freely and voluntarily, for the uses and purposes therein expressed. WITNESS my hand and official seal in the County and State last aforesaid this day of , 2000. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number Or not legible on(nap: My Commission Expires(ii nut legible on seal): -1 f- 006.191314.4 CITY: Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA By: Print Name: S. Scott Vandergrift,Mayor Attest: Jean Grafton, City Clerk Print Name: (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING HELD Approved as to form and legality this ON , 2000 day of ,2000. UNDER AGENDA ITEM NO. FOLEY & LARDNER By: City Attorney STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared S. SCOTT VANDERGRIFT and JEAN GRAFTON, personally known to me to he the Mayor and City Clerk, respectively, of the CITY OF OCOEE, FLORIDA and that they severally acknowledged executing the same in the presence of two subscribing witnesses, freely and voluntarily under authority duly vested in them by said municipality. WITNESS my hand and official seal in the County and State last aforesaid this day of , 2000. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number(in of legible on seal): My Commission Expires Or nor legible on seal): -12- 006.191314 4 EXHIBIT "A" THE PROPERTY 006.191314.4 -13- EXHIBIT "B" CONDITIONS OF APPROVAL 006.191314.4 -14 EXHIBIT "C" WAIVERS 006.191314.4 -15- EXHIBIT "D" 006.191314.4 -16