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HomeMy WebLinkAboutVI (A 1c) Second Reading of Ordinances: Kent Property - AR-02-07-01; Annexation Agreement Agenda 3-18-2003 Item VT A IC:- FOLEY : LARDNER MEMORANDUM CLIENT-MATTER NUMBER 020377-0602 TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Scott A. Cookson, Esq.,Assistant City Attorney THROUGH: Paul E. Rosenthal, Esq., City Attorney DATE: March 12, 2003 RE: Kent Property Annexation Agreement (Project No.AR-02-007-01) ISSUE: Whether the City Commission should approve the proposed Annexation Agreement relating to the Kent Property. DISCUSSION: The owners of approximately 9.116 acres of property located North of State Road 50 and approximately 331 feet east of Blackwood Avenue (the "Property") have petitioned the City for annexation and have requested an initial zoning of C-2 with the intention of developing the property for commercial uses. In addition to the standard provisions contained in the Annexation Agreement, the Kent Property Annexation Agreement provides that: (1) The annexation is contingent upon the Developer of the Property acquiring title to the Property within ninety (90) days of the date of the Annexation Agreement. The Annexation Ordinance and the obligations contained in the Annexation Agreement will become null and void and of no further force and effect if the Developer is not able to acquire title to the Property within ninety (90) days from the date of execution of the Annexation Agreement (See Section 2). (2) The Developer shall develop the Property in conjunction with the adjacent Ocoee Commons PUD Property. The Annexation Agreement provides that the Developer will submit the required applications to the City in order to pursue a rezoning of the Property to incorporate the Property within the Ocoee Commons PUD (See Section 4). 006.288907. FOLEY&LARDNER FOLEY : LARDNER (3) Certain roadway improvements set forth in the Ocoee Commons PUD must be completed prior to development of the Property (See Section 5). (4) Development of the Property shall include cross access easements between the Property and the adjacent Ocoee Commons Property so that both pedestrian and vehicular access to the Property can be made from both Blackwood Avenue and Montgomery Avenue through the Ocoee Commons PUD Property (See Section 6). (5) The Property will include a 25' buffer setback along the entire south boundary (See Section 7). (6) The following uses shall not be permitted: automobile sales (new or used), automobile repair or service stations, pawn shops, or a convenience store with gas sales (See Section 8). RECOMMENDATION: It is respectfully recommended that the Mayor and City Commissioners approve the Annexation Agreement for the Kent Property and authorize execution thereof by the Mayor and City Clerk. Attachment 2 006.288907. THIS INSTRUMENT PREPARED BY: Scott A.Cookson,Esq. FOLEY&LARDNER 111 North Orange Avenue,Suite 1800 Post Office Box 2193 Orlando,FL 32802-2193 (407)423-7656 AFTER RECORDING RETURN TO: For Recording Purposes Only Jean Grafton,City Clerk CITY OF OCOEE 150 North Lakeshore Drive Ocoee,Florida 34761 Case No.: AR-02-07-01: Kent Property ANNEXATION AGREEMENT THIS ANNEXATION AGREEMENT (this "Agreement") is made this day of , 2003, by and between USTLER/FAGAN, INC., a Florida corporation, OCOEE COMMONS, LLC, a Florida limited liability company, and BLACKWOOD/50, LLC, a Florida limited liability company, whose mailing address is 236 Pasadena Place, Orlando, Florida 32803 (hereinafter individually and collectively referred to as the "Developer") and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761(hereinafter referred to as the"City"). RECITALS WHEREAS, ALFRED H. KENT and CAROLYN S. KENT, PATRICIA KENT HIRE, ALFRED H. KENT, JR. and ALISON KENT BRYAN (hereinafter collectively referred to as the "Owner"), own fee simple title to certain property located in Orange County, Florida, said property being more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof(the `Property"); and WHEREAS, Owner and Ustler/Fagan, Inc. have entered into that certain Purchase and Sale Agreement dated January 30, 2002 (the "Purchase Agreement") whereby Owner has agreed to convey the Property subject to certain contingencies including annexation of the Property into the corporate limits of the City of Ocoee; and WHEREAS, pursuant to Section 171.044, Florida Statutes, the Owner has petitioned the City Commission of the City (the "Ocoee City Commission") to voluntarily annex the Property into the corporate limits of the City(the "Petition"); and WHEREAS, the Planning and Zoning Commission has held a public hearing to review the Petition and at such hearing found the annexation of the Property to be consistent with the Ocoee Comprehensive Plan and Joint Planning Area Agreement between the City and Orange 006.281 020. County (the "JPA Agreement"), and has recommended that the Ocoee City Commission annex the Property into the corporate limits of the City; and WHEREAS, the City has required the execution of this Agreement as a condition precedent to the consideration of the Petition by the Ocoee City Commission; and WHEREAS, the Ocoee City Commission has reviewed the proposed annexation and found the proposed annexation to be consistent with the Ocoee Comprehensive Plan and the WA Agreement and to represent a minimal fiscal and level of service impact on the City; and WHEREAS, the City has determined that the execution of this Agreement is essential to the public health, safety and welfare and the ability of the City to plan for proper traffic circulation in the vicinity of the Property in accordance with the Ocoee Comprehensive Plan; and WHEREAS, the City has determined that, subject to the terms, conditions and limitations hereinafter set forth, it is feasible to extend municipal services to the Property on the same terms and conditions afforded to all property owners within the City except to the extent set forth in this Agreement; and WHEREAS, the City has conducted an Annexation Feasibility & Public Facilities Analysis with respect to the annexation of the Property and determined that this Agreement and the annexation of the Property is consistent with the goals, objectives and policies of the Ocoee Comprehensive Plan; and WHEREAS, pursuant to the application of the Owner, on , 2003 the Ocoee City Commission approved Ordinance No. 2003- annexing the Property into the corporate limits of the City(the"Annexation Ordinance");and WHEREAS, Developer acknowledges that adoption of the Annexation Ordinance is contingent upon Developer acquiring title to the Property. NOW, THEREFORE, in consideration of the mutual premises hereof, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: SECTION 1. RECITALS. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. CONTINGENCY OF ANNEXATION. The Annexation Ordinance is contingent upon the Developer acquiring title to the Property from Owner within ninety (90) days of the date this Agreement is approved by the Ocoee City Commission. The execution of a deed from Owner to Developer within ninety (90) days of the date of this Agreement, and the subsequent recording of said deed of conveyance among the public records of Orange County, Florida, shall satisfy this contingency. Within ten (10) days of the recording of the deed of conveyance, the Developer shall provide to the City a copy of the recorded deed together with a letter confirming that the deed has been recorded and that the closing on the sale of the Property from Owner to Developer has occurred. The Developer shall cause this Agreement to be 006.281020. -2- recorded among the Public Records of Orange County, Florida following the deed of conveyance and prior to the recording of any mortgages on the Property, or, in the event the mortgage is recorded ahead of this Agreement, the Developer shall cause the mortgage holder to execute a recordable document in a form acceptable to the City evidencing that the mortgage holder joins in and consents to this Agreement and that its mortgage is subordinate to this Agreement. Within sixty (60) days of the recording of the deed of conveyance, the Developer shall present to the City an updated title report evidencing that the Property was not encumbered by a mortgage or other encumbrance not accepted by the City at the time of recording of the Agreement. In the event Developer does not acquire fee simple title to the Property from Owner within ninety (90) days of the date of this Agreement, the Annexation Ordinance shall be null and void and of no further force and effect. In addition, the Annexation Ordinance shall be specific to Developer, and is not effective should the Owner fail to convey the Property to Developer within the time set forth herein. SECTION 3. ANNEXATION OF THE PROPERTY. Prior to the execution of this Agreement by the City, the Ocoee City Commission has adopted the Annexation Ordinance subject to the contingency set forth in Section 2 hereof, thereby redefining the corporate territorial limits of the City to include the Property. SECTION 4. OCOEE COMMONS PUD. In the event the Property is developed in conjunction with the development of the property adjacent to the north and west boundaries of the Property ("Ocoee Commons PUD") then the Developer agrees that prior to receiving subdivision plan or site plan approval for the Property that the Owner will submit the required applications to the City, not withdraw said applications and pursue approval to rezone the Property to PUD, amend the Ocoee Commons PUD, and subject the Property to the then in effect Land Use Plan for Ocoee Commons, including all of the Conditions of Approval thereof. SECTION 5. ROADWAY IMPROVEMENTS. The Owner hereby acknowledges that those improvements for Tract "M" (Blackwood Ave.) and Tract "L3" (Montgomery Ave. from its intersection with Tract "M" up to the full access point to Tract "C") all as set forth on that certain Preliminary Subdivision Plan for Ocoee Commons PUD prepared by Design Services Group, Inc., date stamped as received by the City of Ocoee on , 2003 with such additional revisions thereto, if any, as may be reflected in the minutes of said City Commission meeting (the "Ocoee Commons PSP") are required to be completed prior to or in conjunction with the development of the Property and that no certificates of occupancy will be issued for the Property until such time as Tract "M" and Tract "L3" are constructed in accordance with a Final Subdivision Plan which is substantially consistent with the Ocoee Commons PSP and which shows the improvements to Tract"M" and Tract "L3" and said improvements are accepted by the City. SECTION 6. CROSS ACCESS EASEMENTS. Owner hereby agrees that any subdivision plan or site plan for development of Property approved by the City will provide for cross access between the Property and the parcel adjacent to the north boundary of the Property and between the Property and the parcel adjacent to the western boundary of the Property so as to allow for pedestrian and vehicular cross access between the parcels to the north and west of the Property and to allow for access to the Property from Blackwood Avenue and Montgomery 006281020. -3- Avenue once Montgomery Avenue is extended to intersect with Blackwood Avenue. The Owner acknowledges that the Ocoee Commons PUD and Ocoee Commons PSP contemplate a private drive, providing pedestrian and vehicular access to the Property and to the parcel adjacent to the western boundary of the Property, along the western boundary of the Property. The Owner shall enter into such easement agreements as may be required by the City or the adjacent property owner(s)to effectuate the intent of this provision. SECTION 7. SOUTH BUFFER. Owner hereby agrees that any subdivision plan or site plan for development of the Property will include a twenty-five (25) foot buffer set back along the entire south boundary line of the Property. The twenty-five (25) foot buffer set back shall include up to five (5) feet of land subsequently taken by or conveyed to the Department of Transportation or other governmental entity for improvements to State Road 50. SECTION 8. LIMITATIONS ON DEVELOPMENT. Those portions of the Property developed for commercial uses shall be developed with the standards applicable to areas within a C-2 zoning district, according to Ordinance 99-23, as amended, except as may otherwise be specified in the plans and conditions of approval for the PUD of which this Property may become a part. Any uses that would be permitted as a special exception in a C-2 district will require special exception approval. However, even though the following uses would normally be permitted in a C-2 zoning district, the following uses shall not be permitted on those portions of the Property developed for commercial uses: automobile sales (new or used), automobile repair or service stations, pawn shops, or a convenience store with gas sales. SECTION 9. NOTICE: PROPER FORM. Any notices required or allowed to be delivered shall be in writing and be deemed to be delivered (1) when hand delivered to the official hereinafter designated, or(2)upon receipt of such notice when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address set forth opposite the party's name below, or at such other address as the party shall have specified by written notice to the other party delivered in accordance herewith. Developer: do Ustler/Fagan, Inc. 236 Pasadena Place Orlando, Florida 32803 With copy to: J.P. Carolan, III, Esquire Winderweedle, Haines, Ward & Woodman, P.A. 1500 Bank of America Center 390 N. Orange Avenue Orlando, Florida 32801 City: City of Ocoee Attn: City Manager ISO North Lakeshore Drive Ocoee,Florida 34761 With copy to: Paul E. Rosenthal, Esq. 006281020 -4- Foley&Lardner 111 N. Orange Avenue, Suite 1800 Orlando, Florida 32801 SECTION 10. NOTICES; DEFAULT. Each of the parties hereto shall give the other party written notice of any default hereunder and shall allow the defaulting party thirty (30) days from the date of its receipt of such notice within which to cure any such defaults or to commence and thereafter diligently pursue to completion good faith efforts to effect such cure and to thereafter notify the other parties of the actual cure of any such defaults. This Agreement is enforceable at law or in equity by the non-defaulting party, including, but not limited to the right of specific performance. SECTION 11. BINDING AGREEMENT ON SUCCESSORS. This Agreement shall be binding upon and shall inure to the benefit of the Owner, the City, and their respective successors and assigns and shall run with the land. SECTION 12. RECORDATION. The parties hereto agree that this Agreement shall be recorded in the Public Records of Orange County, Florida, at the expense of the Owner. SECTION 13. 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 14. SEVERABILITY. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other part of this Agreement if the rights and obligations of the parties contained therein are not materially prejudiced and if the intentions of the parties can continue to be effected. SECTION 15. RECOVERY OF ATTORNEYS' COSTS AND FEES. In connection with any litigation between the City and the Owner, including appellate proceedings arising out of this Agreement or the violation of any law, rule, regulation, ordinance, resolution, or permit, the prevailing party shall be entitled to recover from the other party reasonable attorneys' fees, paralegal fees, and costs hereunder, whether incurred prior to, during or subsequent to such court proceedings, on appeal or during any bankruptcy proceedings. SECTION 16. ENTIRE AGREEMENT. This instrument and its exhibits constitute the entire Agreement between the parties and supersedes all previous discussions, understandings, and agreements between the parties relating to the subject matter of this Agreement. Amendments to and waivers of the provisions herein shall be made by the parties in writing by formal amendment which shall be recorded in the Public Records of Orange County, Florida at the Owner's expense. SECTION 17. COUNTERPARTS. This Agreement and any amendments hereto may be executed in any number of counterparts, each of which shall be deemed an original instrument, but all such counterparts together shall constitute one and the same instrument. 006.281020. -5- SECTION 18. EFFECTIVE DATE. This Agreement shall first be executed by the Owner and submitted to the City for approval by the Ocoee City Commission. Upon approval by the Ocoee City Commission, this Agreement shall be executed by the City. The Effective Date of this Agreement shall be the date of execution by the City. ao6.281020. _g_ IN WITNESS WHEREOF, the Developer and the City have caused this instrument to be executed by their duly authorized officers as of the day and year first above written. Signed, sealed and delivered in the DEVELOPER: presence of USTLER/FAGAN, INC., a Florida corporation Print Name By: F. Thomas Ustler, President 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 F. Thomas Ustler, as President of USTLER/FAGAN, INC. who [ ] is personally known to me or [ ] produced as identification, and that he acknowledged executing the same 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 , 2003. 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): Signed, sealed and delivered in the ooe.zetozo. -T presence of OCOEE COMMONS, LLC, a Florida limited liability company Print Name By: F. Thomas Ustler, Managing Member Print Name 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 F. Thomas Ustler, as Managing Member of OCOEE COMMONS, LLC who [_] is personally known to me or [ ] produced as identification, and that he acknowledged executing the same 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 , 2003. Signature of Notary Name of Notary(Typed, Printed or Stamped) Commission Number Of ool legible on seal): My Commission Expires(if not legible on seal). 006.281020. -8- Signed, sealed and delivered in the presence of BLACKWOOD/50, LLC, a Florida limited liability company Print Name By: F. Thomas Ustler, Managing Member Print Name 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 F. Thomas Ustler, as Managing Member of BLACKWOOD/50, LLC who [ J is personally known to me or [_J produced as identification, and that he acknowledged executing the same 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 ,2003. Signature of Notary Name of Notary(Typed,Printed or Stamped) Commission Number(if not legible on seal): My Commission Expires Or not legible on seal): 006.281020. -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 ON Approved as to form and legality this UNDER AGENDA ITEM NO. day of ,2003. 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 aforesaid and in the County aforesaid to take acknowledgements, 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, a Florida municipal corporation, and that they severally acknowledged executing the same on behalf of said municipality 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 , 2003. 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): -10- 006.281020. EXHIBIT "A" The Property EAST ' OF SOUTHWEST '4 OF SOUTHEAST '/a OF SOUTHEAST 'A, SECTION 20, TOWNSHIP 22 SOUTH, RANGE 28 EAST, ORANGE COUNTY, FLORIDA; (LESS STATE ROAD). WEST % OF SOUTHEAST 'A OF SOUTHEAST 'A OF SOUTHEAST ''%, SECTION 20, TOWNSHIP 22 SOUTH, RANGE 28 EAST, ORANGE COUNTY, FLORIDA; (LESS ROAD RIGHT-OF-WAY ON SOUTH). MORE PARTICULARLY DESCRIBED AS: (METES AND BOUNDS DESCRIPTION) COMMENCE AT THE SOUTHEAST CORNER OF SECTION 20, TOWNSHIP 22 SOUTH, RANGE 28 EAST; THENCE RUN N89°28'55"W, ALONG THE SOUTH LINE OF THE SOUTHEAST ''A OF SAID SECTION 20, A DISTANCE OF 331.90 FEET; THENCE N00°26'01"E A DISTANCE OF 68.39 FEET TO THE NORTH RIGHT-OF-WAY LINE OF STATE ROAD NO. 50 FOR A POINT OF BEGINNING; THENCE N89°23'37"W, ALONG SAID NORTH RIGHT-OF-WAY LINE, A DISTANCE OF 663.86 FEET; THENCE N00°23'10"E A DISTANCE OF 599.28 FEET; THENCE S89°09'40"E A DISTANCE OF 664.37 FEET; THENCE S00°26'01"W A DISTANCE OF 596.59 FEET TO THE POINT OF BEGINNING. 006.281020. -II-