HomeMy WebLinkAboutItem 12 Approval of the Seventh Amendment to the Development and Economic Incentive Agreement for City Center West Orange – Phase 1 /41_$16,
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AGENDA ITEM COVER SHEET
Meeting Date: August 18, 2020
Item !Z.
( Reviewed By:
Contact Name: Michael Rumer, Deve opment Department Director:
Services Director
Contact Number: Ext. 1018 City Manager:
Subject: Seventh Amendment to Development and Economic Incentive Agreement; City Center
West Orange (CCWO); Commission District# 3 - Richard Firstner
Background Summary:
On September 6, 2016, the City Commission approved and executed a Development and Economic Incentive
Agreement (the Agreement) for City Center West Orange Phase 1, by and between CCWO Development
Management, LLC,WSCC Development, LLC, MB II, the City of Ocoee, and the Ocoee CRA, for the development
of City Center West Orange.
Subsequent to the execution of the Agreement, which was on September 20, 2016, CBPW Corp. acquired the
property fee simple from WSCC Development, LLC, by a Special Warranty Deed. By its acquisition of the abover
referenced parcels, CBPW must undertake all obligations inuring to WSCC Development, LLC, and CCWO
Development Management, LLC, under the Original Agreement and by this Amendment and is entitled to all
incentives that would have been payable to the previous owners. Additionally, the First Amendment to
Development and Economic Incentive Agreement was approved and executed at the December 6, 2016, City
Commission meeting which amended Section 10 of the Development and Economic Incentive Agreement to
include a provision allowing the economic incentives to be used by the City Center West Orange project on all
properties associated with the City Center West Orange development within the Target Area 2.
A Second Amendment to the Agreement was approved and executed at the January 17, 2017, City Commissioni
meeting, which provided for the expiration dates for ground-breaking to be extended from January 1, 2017, to
March 1, 2017, and the site development completion date from August 31, 2017, to December 30, 2017 on all
properties associated with the City Center West Orange development within the Target Area 2.
A Third Amendment to the Agreement was approved on December 1,9, 2017, City Commission meeting, which
provided for the extension of the expiration dates for site development completion from December 30, 2017, to
July 2, 2018, on all properties associated with the City Center West Orange development within the Target Area
2. On June 19, 2018, and July 17, 2018, the City Commission voted to extend time under the agreement.
In 2018, the developer created a Community Development District (CDD) on all of the City Center West Orange
Lands. The CDD will repay the developer for infrastructure improvements made to date and other improvements
going forward.
A Fourth Amendment to the Agreement was approved on September 18, 2018 that extended the expiration dates
for Building Permit submittal from July 2, 2018, to September 18, 2019, and construction completion of Maine
Street Section 2 date from July 2, 2018, to September 18, 2019. During discussions with the developer on the
Fourth Amendment to the Development and Economic Incentive Agreement, City staff requested the consultant
(GAI Community Solutions Group), who aided in crafting the original Economic Incentive Agreement, review the
proposed delay of the project start dates for impacts to the Incentive Agreement. Per the memorandum dated
August 23, 2018, the delay in the project completion date will not negatively burden or add risk to the City or
Community Redevelopment Agency (CRA) with respect to providing incentives based on the criteria stipulated in
the agreement. Also, the consultant disclosed that because of the progress in infrastructure constructed to date,
the property values of the development are being assessed at a higher taxable value than when the agreement
went into effect, resulting in increased property tax collection with no offset in paying a percentage back as an
incentive.
A Fifth Amendment to the Agreement was approved on March 19, 2019, in response to the developer's request
to make changes to Section 6 of the Development and Economic Incentive Agreement to clarify and modify how
the flat building permit fee of $500,000 will be paid to the City. As amended in the Fifth Amendment, Section 6
specified that a fixed amount of $55,000 would be paid to the City at the time the building permit is issued for
foundation construction; a fixed fee of $110,000 will be paid to the City at the time the parking garage building
permit is issued, and the developer will make a payment of $335,000 to the City at the time the building permits
are issued for building shells. The Amendment also changed the flat fee of$200,000 for payment into an escrow
account to pay for project oversight to retaining 40% of each building fee payment. Section 6 also clarified to
provide that, in the event that any construction plans are not submitted on or before September 18, 2019, the
City's standard fees will apply instead of the fee schedule presented in this Section. The amendment also changed
the default dates identified in Section 7 for deferral of payment of Sewer and Water Capital Charges and Section
9 for deferral of payment of Transportation Impact Fees from April 1, 2019 to October 1, 2020.
A Sixth Amendment to the Agreement was approved and executed at the November 5, 2019, City Commission
meeting from the Developer to meet deadlines associated with the Fourth and Fifth Amendments for compliance
with Building Permit issuance and Certificate of Occupancy for the City Center Development with new default
dates of September 18, 2019, and October 1, 2020, with a Water and Sewer Capital charge deferment being
extended until October 1, 2022 (Section 5). The Developer is requested this final extension of one (1) year for
each as financing for the Community Development District will be paid in full by February 2020.
New Request
A request for a Seventh Amendment to the Agreement is being requested as the Developer has made significant
progress in constructing the infrastructure of the site and has submitted Building Plans for the Parking Garages,
and is finishing the foundation work.
The requested amendment will facilitate the following: i) adjust the time frame for which the City's responsible fpr
providing the cost share payment for public stormwater from the Maine Street Pond. The Owner has completed
and received a certificate of completion from the City for completion of the Maine Street Retention Pond. The
parties agree that the City shall pay to Owner a cash payment of $417,002.00 as identified and agreed to in the
Agreement and shall be paid out of the City's Stormwater Fund within thirty (30) days of the Effective Date of this
Amendment; and ii) extend from October 2022 to October 2023, deferral and payment dates for Sewer and Water
Capital Charges, Deferral of Transportation Impact fees, and the provisions for Building Plan Review fees.
Issue: Should the Honorable Mayor and City Commissioners approve a Seventh Amendment to the CCWO
Development and Economic Incentive Agreement, to move all default dates from the Fourth and Fifth Amendment
out one (1) year?
Recommendation: Staff respectfully recommends that the Honorable Mayor and City Commissioners approve
the Seventh Amendment to Development and Economic Incentive Agreement for City Center West Orange.
Attachments: Seventh Amendment to Development and Economic Incentive Agreement
Financial Impact: $417,002.00 from Stormwater Fund
Type of Item: (please mark with an `z')
Public Hearing For Clerk's Dept. Use:
Ordinance First Reading Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
X Commission Approval
Discussion&Direction
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney
Reviewed by Finance Dept. N/A
Reviewed by () N/A
4
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
PREPARED BY:
Dana Crosby-Collier,Esq.
SHUFFIELD,LOWMAN&WILSON.P.A.
1000 Legion Place,Suite 1700
Orlando,FL 32801
RETURN TO:
City Clerk
CITY OF OCOEE
150 N.Lakeshore Drive
Ocoee,FL 34761 For Recording Purposes Only
(407)656-2322
SEVENTH AMENDMENT TO DEVELOPMENT AND
ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)
THIS SEVENTH AMENDMENT TO DEVELOPMENT AND ECONOMIC
INCENTIVE AGREEMENT (this "Amendment") is made and entered into as of the
day of _, 2020, by and among CBPW CORPORATION, a Nevada
corporation, whose mailing address is 12724 Waterford Pointe Boulevard, Windermere, FL
34786 ("CBPW") and MAINE BOULEVARD II, LLC, a Florida limited liability company,
whose mailing address is 7380 West Sand Lake Road, Suite 395, Orlando, FL 32819 ("MB IP')
(CBPW, and MB II hereinafter referred to collectively 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, on October 3, 2016, a fully executed Development and Economic Incentive
Agreement for City Center West Orange Phase 1, by and between CCWO Development
Management, LLC, WSCC Development, LLC, MB II, the City, and the City of Ocoee
Community Redevelopment Agency (CRA), for the development of the Property described in
Exhibit "A," attached thereto, was recorded at document #20160517902, public records of
Orange County, Florida, and is amended by that a First Amendment thereto as fully executed on
December 6, 2016, and recorded at document #20160666267, public records of Orange County,
Florida, the Second Amendment thereto as fully executed on January 17, 2017, and recorded at
document #20170046961, public records of Orange County, Florida, the Third Amendment
thereto as fully executed on December 28, 2017, and recorded at document #20180023316, the
Fourth Amendment thereto as fully executed on September 18, 2018, and recorded at document
#20180604048, public records of Orange County, Florida, the Fifth Amendment thereto as fully
executed on March 19, 2019, and recorded at document#20190170129,public records of Orange
County, Florida, and the and the Sixth Amendment thereto as fully executed on November 8,
2019, and recorded at document #20190708340, public records of Orange County, Florida
(collectively the "Agreement");
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WHEREAS, on August 18, 2020, the City Commission voted to recognize substantial
completion of the Maine Street Retention Pond and to pay Owner $417,002.00 for this work
from the City's Stormwater Fund and to also extend time under certain provisions of the
Agreement; and
WHEREAS, the parties agree that the terms and provisions of the Agreement should be
formally amended to allow for City payment to Owner at this time and to allow additional time
for development of the Property; and
WHEREAS, since the use and application of fees and impact fee credits is not within the
purview of the CRA, the CRA is not a party to this Amendment.
NOW, THEREFORE, in consideration of the premises and other good and valuable
considerations exchanged between the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Recitals; Definitions. The above recitals are true and correct and
incorporated herein by this reference.• All capitalized terms not otherwise defined herein shall be
as defined or described on the Final Plans, unless otherwise indicated.
Section 2. Development Approvals. Nothing herein will be construed to grant or
waive on behalf of the City any development approvals that may be required in connection with
the Final Plan or the Owner's development of the Property. Notwithstanding this Amendment,
the Owner must comply with all applicable procedures and standards relating to the development
of the Property.
Section 3. Building Plan Review Fee. Section 6 of the Agreement is amended to
read as follows:
The parties acknowledge that, as of the date of this Amendment, construction of the
horizontal development of the Initial Construction Improvements, as defined in this
paragraph, has commenced. Notwithstanding anything contained herein or in the Final
Plans to the contrary, provided that (i) the Owner is not then in default under any of the
obligations contained in this Agreement; and (ii) only as it applies to building plans
submitted for the construction of the horizontal development and the parking garages and
shell buildings within the Property (the "Initial Construction Improvements"); and (iii)
provided such payment is made in connection with plans submitted on or before
December 31, 2021 (the "Plan Review Discount Deadline"), building and fire plan
review fees for construction of the Initial Construction Improvements, currently assessed
at 3/4 of 1% and 1/4 of 1%, respectively, of the anticipated construction costs for such
improvements, shall instead be assessed at a flat fee of $500,000.00 (the "Flat Review
Fee"). The Flat Review Fee shall be payable as described in (i), (ii) and (iii), below,
provided such submissions are prior to the Plan Review Discount Deadline: (i) a
$55,000.00 Payment shall be made to the City at the time the building permit is issued by
the City for foundation construction; (ii) a$110,000.00 Payment shall be made to the City
at the time the building permit is issued by the City for the parking garage; and (iii) a
Seventh Amendment
DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)
$335,000.00 Payment shall be made to the City at the time the building permit is issued
for the shell building and interior construction. Upon receipt of each Payment, 40% of
each Payment shall be retained by the City in a separate account and used for the City's
purchase and maintenance of plan review/permit tracking software, permanent or
temporary positions relating to inspections, or other specific needs relating to the project
to be developed on the Property. Nothing herein shall prohibit the City from using any
software, employees, or other items purchased with any portion of a Payment, including
the 40% of the Payment retained in a separate account, for other projects or properties in
the City. The remainder of the any Payment shall be applied and used by the City
consistent with its normal procedure relating to the receipt of building and fire plan
review fees. Notwithstanding anything to the contrary contained herein, the Flat Review
Fee shall not be applicable and instead the then-applicable standard fees shall apply to
any construction plans not submitted to the City on or before the Plan Review Discount
Deadline, in accordance with this Section.
Section 4. Deferral of Payment of Sewer and Water Capital Charges. Section 7
of the Agreement is amended to read as follows:
Notwithstanding anything contained herein or in the Final Plans to the contrary, provided
that the Owner is not then in default under any of the obligations contained in this
Agreement and only as it applies to development of the Initial Construction
Improvements, the applicable Sewer and Water Capital Charges that are required in
connection with the Initial Construction Improvements that are due and payable pursuant
to the Code of Ordinances of the City at the time a building permit is issued shall instead
be due and payable on the date of issuance of a temporary or the fmal certificate of
occupancy/certificate of completion for such improvements and, if at such time the
amounts generated are sufficient, paid out of the Tax Increment Recapture (as defined in
Section 8 of the Agreement) generated from the Property up to the Tax Increment Cap (as
defined in the Agreement). In the event there is not sufficient Tax Increment Recapture
available to pay the applicable Sewer and Water Capital Charges within two (2) years
following the issuance of the first temporary or the final certificate of
occupancy/certificate of completion for the Initial Construction Improvements, Owner
shall pay on its own the applicable Sewer and Water Capital Charges that are required in
connection with the Initial Construction Improvements that are due and payable in such
two (2) year period. However, the City shall reimburse Owner for any payments toward
Sewer and Water Capital Charges paid for by Owner out of the Tax Increment Recapture
received following such two (2) year period. Notwithstanding the foregoing, such
payments to Owner shall only be made in the event the Tax Increment Recapture at such
time exceeds the amount of applicable Sewer and Water Capital Charges paid by the City
out of the Tax Increment Recapture.
Under no circumstances shall the City be obligated to issue a temporary or final
certificate of occupancy/certificate of completion for any improvements constructed on
the Property until the applicable Sewer and Water Capital Charges for such improvement
are paid. For improvements on the Property other than the Initial Construction
Improvements (including, but not limited to, any applicable upcharge for uses beyond a
P ( g pp p
Seventh Amendment
DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)
retail shell), Sewer and Water Capital Charges shall be due and payable in amounts and
pursuant to the timing set forth in the Code of Ordinances of the City. Notwithstanding
anything to the contrary contained herein, the deferral and payment of Sewer and Water
Capital Charges shall not be applicable in the event a temporary or final certificate of
occupancy/certificate of completion for such improvements is not issued on or before
October 1, 2023, the Tax Increment Cap has been reached, or the Recapture Period (as
defined in the Agreement) has expired. The City Manager may, in his/her sole and
absolute discretion, grant the Owner one (1)- six (6) month extension beyond the date
provided in this Section; provided, however, that no time extension granted by the City
Manager shall extend beyond April 1, 2024.
Section 5. Deferral of Payment of Transportation Impact Fees. Section 9 of the
Agreement is amended to read as follows:
Notwithstanding anything contained herein or in the Final Plans to the contrary, provided
that the Owner is not then in default under any of the obligations contained in this
Agreement and only as it applies to development of the Initial Construction
Improvements, transportation impact fees that are required in connection with the Initial
Construction Improvements that are due and payable pursuant to the Code of Ordinances
of the City at the time a building permit is issued shall instead be due and payable on the
date of issuance of a temporary or the final certificate of occupancy/certificate of
completion for such improvements.
Once the Transportation Impact Fee Credits as described in Section 10 of the Agreement
is exhausted, under no circumstances shall the City be obligated to issue a temporary or
final certificate of occupancy/certificate of completion for any improvements constructed
on the Property until the applicable impact fees for such improvement are paid. At all
times school, police and fire impact fees shall be due and payable in amounts and
pursuant to the timing set forth in the Code of Ordinances of the City. For improvements
on the Property other than the Initial Construction Improvements (including, but not
limited to, any applicable upcharge for uses beyond a retail shell), transportation impact
fees shall be due and payable in amounts and pursuant to the timing set forth in the Code
of Ordinances of the City. Notwithstanding anything to the contrary contained herein, the
deferral of transportation impact fees shall not be applicable in the event a temporary or
final certificate of occupancy/certificate of completion for such improvements is not
issued on or before October 1, 2023. The City Manager may, in his/her sole and absolute
discretion, grant the Owner one (1)- six (6) month extension beyond the date provided in
this Section; provided, however, that no time extension granted by the City Manager shall
extend beyond April 1, 2024.
Section 6. Construction of Maine Street Retention Pond.. Section 24 of the
Agreement is hereby amended to read as follows:
The Final Plans provide for a master retention pond located near the northeast corner of
Maine Street and Chicago Avenue (the "Maine Street Retention Pond"). The Maine
Street Retention Pond is intended to accommodate the stormwater drainage from both
Seventh Amendment
DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)
Maine Street Section 1 and Maine Street Section 2. Owner has completed and received
a certificate of completion from the City for completion of the Maine Street Retention
Pond. The parties agree that the City shall pay to Owner a cash payment of$417,002.00
out of the City's Stormwater Fund within thirty (30) days of the Effective Date of this
Amendment.
Section 7. Ratification of Prior Agreements. Except as amended hereby, the
Agreement remains unchanged and in full force and effect, and each of the parties hereto hereby
ratifies and confirms the terms and conditions of the Agreement. All references herein to the
Agreement shall refer to the Development and Economic Incentive Agreement for City Center
West Orange Phase 1, as amended by this Sixth Amendment, unless the text or context indicates
otherwise. In the event of any conflict between the Agreement and this Amendment it is agreed
that this Amendment shall control.
Section 8. Covenant Running with the Land. This Amendment 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 9. Recordation of Amendment. The parties hereto agree that an executed
original of this Amendment shall be recorded by the City, at the Owner's expense, in the Public
Records of Orange County, Florida.
Section 10. Counterparts. This Amendment 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 11. Effective Date. The Effective Date of this Amendment shall be the day
this Amendment is last executed by a party hereto and such date shall be inserted on Page 1 of
this Amendment.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
Seventh Amendment
DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)
IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be
executed by their duly authorized elected officials, partners, and/or officers as of the day and year
first above written.
Signed, sealed and delivered OWNER:
in the presence of:
CBPW CORPORATION, a Nevada
Corporation
By:
Print Name:
Title:
Print Name
Print Name
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me by means of❑ physical presence
or ❑ online notarization, this day of , 2020, by
as of CBPW Corporation, a Nevada corporation, on behalf of the
corporation, who is personally known to me or who has produced as
identification.
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):
Seventh Amendment
DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)
Signed, sealed and delivered OWNER:
in the presence of:
MAINE BOULEVARD II, LLC, a Florida
limited liability company
By:
Print Name:
Title:
Print Name
Print Name
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me by means of❑ physical presence
or ❑ online notarization, this day of , 2020, by
as of MAINE BOULEVARD II, LLC, a Florida limited liability company,
on behalf of the company, who is personally known to me or who has produced
as identification.
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):
Seventh Amendment
DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)
Signed, sealed and delivered CITY:
in the presence of:
CITY OF OCOEE,FLORIDA
By:
Print Name: Rusty Johnson,Mayor
Attest:
Melanie Sibbitt, 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 , 2020 UNDER
day of ,2020. AGENDA ITEM NO.
SHUFFIELD,LOWMAN&WILSON,P.A.
By:
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me by means of❑ physical presence
or ❑ online notarization, this day of , 2020, by RUSTY JOHNSON and
MELANIE SIBBITT, 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.
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):
Seventh Amendment
DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)