HomeMy WebLinkAboutVII(P) Set Date For Special Session Re Florida Auto Auction Agenda 9-05-2000
• Item VII P
FOLEY & LARDNER
MEMORANDUM
CLIENT-MATTER NUMBER
020377-0495
TO: The.Honorable Mayor and City Commissioners of the City of Ocoee
FROM: Paul E. Rosenthal, Esq., City Attorne+)
DATE: August 24, 2000
RE: Florida Auto Auction
As you are aware, the City has been in ongoing discussions with the Florida
Auto Auction regarding a proposed expansion. Transportation impacts has been a key focus
of these discussions. I am in receipt of a letter from Kurt Ardaman dated August 23, 2000
which presents a counterproposal to the proposed Development Agreement prepared by the
City staff and submitted to the Auction. After consultation with the City Manager and City
staff, it is our recommendation that the City Commission schedule a Special Meeting for
Thursday, September 7, 2000 to discuss the Auction's proposal.
For your assistance in evaluating the issues to be discussed, please fmd enclosed
the following:
(1) Draft of Development Agreement as proposed by City staff and submitted to the
Auction.
(2) Kurt Ardaman's letter of August 23, 2000 addressing various issues which are
the subject of the proposed Development Agreement.
(3) My response to Mr. Ardaman dated August 24 which, among other comments,
indicates that a Special Meeting of the City Commission would be requested in
order to address the issues raised in his letter.
PER/jh
Attachment(s)
OIL
006.191855.1
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:
Jean Grafton, City Clerk
CITY OF OCOEE
150 N. Lakeshore Drive
Ocoee,FL 34761
(407)656-2322
DEVELOPMENT AGREEMENT
(Auto Auction)
THIS DEVELOPMENT AGREEMENT ("this Agreement") is made and entered into
as of the _ day of , 2000 by and between
, a corporation, 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—08/21/00
006.191314.1
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
-z,
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/fmal 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 , 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. AA0-1 and being date stamped as received by the City on
, 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:
006.191314.1 -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 be needed in order to provide turning radi and safe
site triangles at roadway intersections;
(hereinafter collectively referred to as the "Right-of-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
determination, in its discretion, of the current need for the Right-of-Way Land or any portion
thereof.
006.191314.1 -3
(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 be
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 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.
(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
006.191314.1 -4
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 $1,200,000.00 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
$1,200,000.00 (such amount in excess of $1,200,000.00 being herein referred to as the
"Reimbursable Amount"), the City will reimburse the Owner, without interest, in accordance
with the schedule set forth below:
i. Road impact fees from the development of the Property and the
lands listed 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$1,200,000.00 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. Ten (10) years from the date of commencement of construction of
the Maguire Road Improvements, 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
$1,200,000.00.
(D) The Owner Monetary Contribution will be paid by Owner to the City in
accordance with the following schedule:
i. 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
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
-5-
006.191314.1
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. Concurrencv.
(A) Immediately following the approval of the Plan and this Agreement the •
Owner shall apply 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 receipt of such application.
(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.
(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.
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 buildings and auction lanes on the Property exceed
-6-
006.191314.1
250,000 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 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 referenced in Section 6 above.
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
be 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 fording that it is subject to review as a development of
regional impact.
Section 9. 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 (1) 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 10. 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 11. 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 12. 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 13. Time of the Essence. Time is hereby declared of the essence to the
lawful performance of the duties and obligations contained in this Agreement.
006.191314.1 -7
Section 14. 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 be made by the parties only in writing by formal
amendment.
Section 15. 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.
Section 16. 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 17. 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 18. 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 19. 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 20. 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 21. 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.
006.191314.1 -8
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 corporations.
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 [_] is personally known to me or [_] 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(if not legible on seal):
My Commission Expires(if not legible on seal):
•
006.191314.1 -9
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 be the Mayor and City
Clerk, respectively, of the CITY OF OCOEE, FLORIDA and that they severally
acknowledged executing the same in the presence of two subscribing witnesses, freely and
voluntarily under authority duly vested in them by said municipality.
WITNESS my hand and official seal in the County and State last aforesaid this
day of , 2000.
Signature of Notary
Name of Notary (Typed, Printed or Stamped)
Commission Number(if not legible on seal):
My Commission Expires(if not legible on seal):
006.191314.1 -10-
EXHIBIT "A"
THE PROPERTY
006.191314.1 -11-
EXHIBIT "B"
CONDITIONS OF APPROVAL
006.191314.1 -12
EXHIBIT "C"
WAIVERS
006.191314.1 -13-
EXHIBIT "D"
1) Dr. Young's Property - 5ac.+/- C-3 zoning (Tax Parcel Nos. )
2) Colony Plaza - 3 commercial outparcels (Tax Parcel Nos. ) .t
3) Holiday Inn - Expansion to include suites (Tax Parcel Nos. )
4) Wal-mart on Maguire Road - Redevelopment of existing site possible out parcels
(Tax Parcel Nos. )
5) Colburn Property - 5ac.+/- C-2 zoning (Tax Parcel Nos. )
6) Roper Property - lOac.+/- C-3 zoning (Tax Parcel Nos. )
7) Car lot at NE corner of Story Rd. and Kissimmee Ave. - Renovation
(Tax Parcel Nos. )
8) Industrial Property north of Enterprise Rd. - 60ac.+/- 1-1 zoning (Tax Parcel Nos.
006.191314.1
-14-
r� LAW OFFICES
p E C I e
F!1811 1B CK, B1SIcx.9 IEN NG/ I, STEPTER.
ARDAMAN. Alir 18EI A BONUS
AUG 2 4 2.000
170 EAST WASHINGTON STREET
ORLANE10. F LORiDa 32801-2397
G. BEN FISHBACK11893-19831 � � &
MARK F. AHLERS
A. KURT ARDAMAN TELEPHONE 14071 425-2786
ZACHARY J. BANCROFT
JOHN. F. BENNETT FAX 14071 425-2863
PHILIP F. BONUS
JULIAN K. DOMINICK www.fishbacklaw.com
LIONEL E. RUBIO
CHARLES R. STEPTER, JR.
August 23, 2000
Via Facsimile & 1" Class U.S. Mail
Paul Rosenthal, Esquire
Foley & Lardner
Post Office Box 2193
Orlando, Florida 32802-2193
Re: Florida Auto Auction of Orlando ("Auction")
Our File No: F109-15777
Dear Paul:
Thank you for your letters of August 14, 2000 and August 21, 2000.
Although I have not had chance to review your most recent correspondence and its
enclosures in detail, the Auction is willing to proceed with its project generally in accordance with
the following:
1. The Auction is willing to dedicate the property requested by the City of Ocoee
("Ocoee") along the south side of Storey Road and along the west side of Maguire
Road and Marshall Farms Road.
2. The Auction is willing to pay Ocoee $600,000.00 which would not be subject to
being repaid, loaning the City $2,000,000.00 which would be subject to being
repaid within a five (5) year period at 6% per annum, with the aforesaid monies
to be paid to and loaned by the Auction to Ocoee to be paid and loaned pursuant
to draws as construction of the Maguire Road Project occurs. The loan must be
secured and structured in such a fashion as to ensure repayment.
3. Ocoee must repay the $2,000,000.00 to the Auction at the earlier of: (i) the dates
when transportation impact fees are paid to Ocoee for projects within a defined
area within the City of Ocoee, which area is to be agreed upon between the
Auction and Ocoee, and (ii) five (5) years after the date of the Agreement.
4. The land included within the Auction's project shall be vested against
transportation concurrency for any and all development which could occur now or
in the future pursuant to the current C3-zoning.
5. All waivers, variances, agreements and other approvals from Ocoee must be
•
Page 2
Paul Rosenthal, Esquire
in place and approved by the City Commission on or before September 19, 2000.
6. It may be necessary to place more specific requirements on, restructure or
recharacterize the $2,000,000.00 amount referenced in paragraphs 2 and 3 of this
letter to ensure the validity and enforceability of Ocoee's obligation to repay such
and that the Auction will recover those monies.
The Auction does not yet have any comments on the proposed Development Agreement
that accompanied your August 21, 2000 letter to me, and therefore does not yet agree to any of
its provisions.
In order to meet the August 28, 2000 deadline that you have suggested, the Auction needs
a response to this letter to you by August 25, 2000.
Very truly yours,
Dictated but not read,
mailed in my absence
to avoid delay.
A. Kurt Ardaman
AKA/ml .
c: Charlie White (via facsimile)
Warren Young, Jr. (via facsimile)
John Stower (via facsimile)
Jim Hall (via facsimile)
Bill Tipton, Sr. (via facsimile)
Bob Wiegers (via facsimile)
Claude Cassagnol (via facsimile)
John Kirby (via facsimile)
Charles R. Stepter, Jr., Esquire
8/22/00-m1-F 109-15777/U:\FAAo\PlannedDevelopment\rosenthalletterjaug22.wpd
FOLEY & LARDNER
ATTORNEYS AT LAW
CHICAGO POST OFFICE BOX 2 193 SACRAMENTO
DENVER ORLANDO, FLORIDA 32802-2 193 SAN DIEGO
JACKSONVILLE I I I NORTH ORANGE AVENUE. SUITE 1800 SAN FRANCISCO
LOS ANGELES ORLANDO, FLORIDA 3280 I-2386 TALLAHASSEE
MADISON TELEPHONE: (407) 423-7656 TAMPA
MILWAUKEE FACSIMILE: (407) 648-1743 WASHINGTON. D C.
ORLANDO WEST PALM BEACH
WRITER'S DIRECT LINE
407-244-3248
EMAIL ADDRESS CLIENT/MATTER NUMBER
prosenthal®foleylaw.com 020377-0107
August 24, 2000
VIA FACSIMILE AND HAND DELIVERY
A. Kurt Ardaman, Esq.
Fishback, Dominick, Bennett,
Stepter & Ardaman
170 East Washington Street
Orlando, Florida 32802-2397
• Re: Florida Auto Auction of Orlando ("Auction")
(Your File No. F109-15777)
Dear Kurt:
•
Thank you for your letter of August 23, 2000. I have met with Ellis Shapiro and other
members of the City staff to review your comments. We are encouraged that the Auction is
continuing to participate in a dialogue which will allow the project to move forward in a timely
manner.
As a point of clarification, please confirm that your letter represents a commitment on
the part of the Auction to remain in Ocoee and expand its operations as proposed. Also,
would the Auction be agreeable to placing this commitment in the Development Agreement?
If so, would the commitment have any time limitation?
Utilizing the numbering system in your August 23' letter, the City has the following
comments/responses:
1. Accepted. Please see Section 2 of the draft Development Agreement which we
believe to be consistent with this item. If you believe otherwise, please advise as to specific
comments.
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A MEMBER OF GLOBALE%WITH MEMBER OFFICES IN BERLIN,BRUSSELS,DRESDEN,FRANKFURT,LONDON,SINGAPORE,STOCKHOLM AND STUTTGART
FOLEY & LARDNER
August 24, 2000
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2. The City has proposed that the Auction contribute $1,200,000 not subject to
repayment and the Auction has made a counterproposal of $600,000. The City has proposed
that the Auction loan up to $1,600,000,. interest free, in order to generate a total of
$2,800,000.00 and the Auction has counter-proposed that it loan the City $2,000,000, at 6%
interest per annum, in order to generate a total of$2,600,000. The City has proposed that the
loan be repaid no later than 10 years from the date of commencement of construction and the
Auction has counter-proposed repayment over a 5 year period.
The specifics of your proposal set forth in Item 2 of your letter require discussion with
the City Commission regarding the availability of funding sources and the priority of projects
in the City's 5-year Capital Improvements Plan (many of which are unfunded). At the
September 5 meeting of the City Commission, we plan to ask that a Special City Commission
meeting be scheduled for September 7 in order to discuss and receive direction regarding the
specifics of the Auction's proposal. This should not delay the review schedule since the City
staff and the Auto Auction can continue to work on finalizing the preliminary/final site plan
while these issues are being resolved.
3. This item appears to be consistent with the draft Development Agreement
except for the amount of the loan and the outside date for repayment which are issues to be
discussed at the Special City Commission meeting. The proposed Development Agreement
sets forth specific tax parcels whose road impact fees (or the cash equivalent thereof), to the
extent received by the City, would be used to repay the loan portion of the Auction's
contribution at an earlier date. We believe that the loan portion set forth in this proposal will
likely be-reduced by the receipt of road impact fees these identified parcels prior to any draw
by the City in excess of the unreimbursed portion. Please advise if the list of parcels identified
by the City is acceptable. Please identify any additional parcels which the Auction believes
should be included.
4. This item proposes that the Auction's property be "vested against transportation
concurrency for any and all development which could occur now or in the future pursuant to
the current C3 zoning". If I understand the proposal correctly, should the Auction elect to
relocate from Ocoee following approval of the Plan and the Development Agreement and sell
its property for a more intense use such as a regional mall or office/ industrial park, then by
virtue of the "vesting" the City would be prohibited from subjecting any such new
development to concurrency review or from imposing any transportation improvement
obligations in connection therewith. While we recognize that the Auction has no such plans,
please advise if you believe that the foregoing would be the result of the requested "vesting"
should it be granted by the City. The City is prepared to "vest" the existing and expanded
operations of the Auction based on the Plan (as approved by the City Commission) and to
accomplish this by means of issuance of a Final Certificate of Concurrency based on the Plan.
5. The City believes that all waivers, variances, and other approvals from the City
can be in place on or before September 19, 2000. Please note that the reference to "other
approvals" would only relate to approvals which have been applied for by the Auction. For
example, certain building permits would be required under the City Code in order to construct
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the proposed improvements and such permits have not been applied for. Additionally, in
order to meet the September 19th deadline, it is necessary that the Auction respond in a timely
manner and meet the deadlines set forth in my previous correspondence.
6. We concur that the obligations set forth in Items 2 and 3 of your letter must be
valid and enforceable obligations of Ocoee. Your letter indicates that you have not had an
opportunity to review the proposed Development Agreement. I believe that you will find that
the Development Agreement provides a valid and enforceable method of assuring the agreed
upon repayment.
We look forward to receipt of your comments on the Development Agreement. If you
would like, we can email you a copy which might facilitate the finalization of the document.
Please contact my secretary, Judy Henning, if you would like us to email a coy to you.
This letter is being provided to you prior to your deadline of August 25th in order that
the Auction is in a position to assure that it meets the City's August 28th deadline for a
response from the Auction to the City comments on the Plan. This response by the Auction is
critical to the ability to meet the September 19th schedule.
Finally, please note that since my last letter to you we have determined that, due to the
Labor Day holiday, there is insufficient staff available on September 1' to hold a DRC
meeting. Accordingly, we have rescheduled the DRC meeting to September 6th at 2:00 p.m.
This movement of the DRC will not affect the scheduled public hearing dates before the
Planning and Zoning Commission and City Commission or the ability of the City to meet the
September 19 deadline.
Sincer
Paul E. Rosenthal
City Attorney
City of Ocoee
PER/jh
cc: Ellis Shapiro (Via Fax)
Russell B. Wagner (Via Fax)
James W. Shira (Via Fax)
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