HomeMy WebLinkAboutItem 02 Approval of the Second Amendment to Development Agreement with Ocoee Business Park ocoee
florida
AGENDA ITEM COVER SHEET
Meeting Date: December 15, 2020
Item # 02-
Reviewed By:
Contact Name: Ginger Corless Department Director: Craig 5hadrix
Contact Number: 407-554-7126 City Manager:
Subject: Approval of the Second Amendment to Developmen Agreement with Ocoee
Business Park in order to acquire the right-of-way (ROW) necessary for Central Florida
Expressway (CFX) to construct a multipurpose path on the south side of Franklin Street
between SR 429 and Bowness Avenue.
Background Summary: On June 16, 2020, the City Commission directed staff to work with CFX to
get a portion of the proposed multipurpose path on Franklin Street constructed. This multipurpose
path will eventually connect the City of Ocoee to the West Orange Trail within the City of Winter
Garden, as well as initiate a regional trail connection to Ocoee's Downtown.
In order for the 12' wide multipurpose path east of SR 429 to be constructed, the City of Ocoee must
acquire adequate ROW from the Ocoee Business Park. Following months of negotiations for the
ROW, the attached Second Development Agreement lays out the terms for ROW acquisition.
They are:
• The City will pay for and acquire a property legal description and sketch of the required ROW.
• The City shall obtain through our legal counsel and delivery to the City a current title insurance
search and commitment in order for the Owner of the property to convey the ROW by a special
warranty deed, free and clear of all title matters.
• Taxes will be prorated to the date one day before the City's acceptance of the ROW.
• In consideration for the conveyance of ROW to construct the shared multipurpose path, the City
will provide the Owner with road impact fee credits in the amount determined by the City's Land
Development Code.
• The conveyance of the ROW parcel shall be valued at fair market value established by an
independent appraisal performed at the City's expense.
• The City will cooperate and assist the Owner in acquiring specific access drives from W.
Franklin Street.
• The City will be responsible for maintaining all shared multipurpose path improvements in the
ROW along Franklin Street and Bowness Avenue.
Issue: Should the Honorable Mayor and City Commission execute the Second Development
Agreement with Ocoee Business Park in order to acquire the necessary ROW to construct the Twelve
(12) foot shared multipurpose path?
Recommendations: Staff recommends that the Honorable Mayor and City Commission authorize
staff to proceed in acquiring the legal description, sketch legal and the title search and furthermore,
authorize the payment for the conveyance of the property be through impact fee credits, as directed
by the City's Development Code.
Attachments: Partially executed Second Amendment to Development Agreement with Ocoee
Business Park.
Financial Impact: Staff estimates the conveyance of ROW will not exceed $100,000 in transportation
impact fee credits to the Ocoee Business Park. Impact fee credits are not considered a budgetary
expenditure.
Type of Item: (please mark with an z )
Public Hearing
Ordinance First Reading
Ordinance Second Reading
Resolution
Commission Approval
Discussion & Direction
For Clerk's'Deot Use:
Consent Agenda
Public Hearing
Regular Agenda
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.
Reviewed by
N/A
N/A
N/A
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THIS INSTRUMENT PREPARED BY:
Scott A. Cookson, Esq.
SHUFFIELD, LOWMAN & WILSON, P.A.
1000 Legion Place, Suite 1700
Post Office Box 1010
Orlando, FL 32801
(407) 581-9800
AFTER RECORDING RETURN TO:
City Clerk
CITY OF OCOEE
150 N. Lakeshore Drive
Ocoee, FL 34761
(407)656-2322
SECOND AMENDMENT TO
DEVELOPMENT AGREEMENT
(Ocoee Business Park)
For Recording Purposes Only
THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT (this
"Amendment") is made and entered into as of the day of
2020, by and between CITY OF OCOEE, a Florida municipal corporation existing under the
laws of the State of Florida, whose mailing address is 150 N. Lakeshore Dr., Ocoee, Florida
34761, Attention: City Manager (the "City") and OCOEE BUSINESS PARK, L.L.C., a
Florida limited liability company, whose mailing address is 1216 Edgewater Drive, Orlando,
Florida 32804 (the "Owner").
WITNESSETH:
WHEREAS, Owner is the fees simple owner of that certain parcel of land located in
Orange County, Florida, being more particularly described in Exhibit "A" attached hereto and
by this reference made a part hereof (hereinafter referred to as the "Property"), which is the
subject of that certain Development Agreement with the City of Ocoee, recorded at Official
Records Book 4228, Page 4325, and subsequently amended by that certain First Amendment to
Development Agreement, recorded at Official Records Book 7350, Page 2612, public records
of Orange County, Florida (together the "Development Agreement');
WHEREAS, City is working with the Central Florida Expressway Authority
("CFEA") to complete certain improvements to the State Road 429 exit at Franklin/West
Franklin/Plant Street, including but not limited to, developing a path that will run along the
northern boundary of the Property;
WHEREAS, City has requested and Owner has agreed to donate certain right-of-way,
as more particularly described in this Amendment, in return for certain consideration by the
City, as more specifically described in this Amendment; and
WHEREAS, the Owner and the City desire to execute this Amendment in order to
fully describe the right-of-way offered by Owner and the consideration offered by the City.
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.
Section 2. Donation of Right-of-way and Consideration by City. Subject to the terms
and conditions set forth in this Amendment:
(a) The Owner shall donate and the convey to the City that certain parcel of real
property, which comprises a portion of the Property, as more particularly described in Exhibit
"B" attached hereto and by this reference made a part hereof (hereinafter referred to as the
"ROW Parcel").
(b) The City shall obtain, at its expense, a sketch of description and legal description of
the ROW Parcel, which must be submitted to and reasonably approved by the City and the
Owner. The Owner shall obtain through its legal counsel and deliver to the City, at the City's
expense, a current title insurance search and commitment (the "Commitment") to issue an
owner's title insurance policy in favor of the City and insuring the City's title to the ROW
Parcel. Owner shall convey said ROW Parcel to City by special warranty deed, free and clear
of all title matters and encumbrances save for those deemed reasonably acceptable to the City.
The City must give notice of its objection to any title matters and encumbrances (the
"Unacceptable Title Matters") within twenty (20) days of its receipt of the Commitment. The
form of the special warranty deed shall be reasonably acceptable to the Owner and City. Taxes
will be prorated to the day before City's acceptance of the ROW Parcel, shall be paid by
Owner, and shall be escrowed in accordance with the provisions of Section 196.295, Florida
Statutes. If the Owner determines not to cure any Unacceptable Title Matters, then either party
may terminate this Agreement within ten (10) days of such determination, unless in such ten
(10) day period the City thereafter agrees to take title to the ROW Parcel subject to the
Unacceptable Title Matters.
(c) In consideration for the Owner's conveyance of the ROW Parcel to the City, the City
will (i) provide Owner with road impact fee credits in the amount determined in accordance
with Section 2(e) below, and (ii) complete and pay for the Property Access Improvements (as
hereinafter defined). Any road impact fee credits provided pursuant to this Amendment shall
only be used in connection with the development of the Property and for no other purpose.
Notwithstanding the foregoing, in the event the impact fee credits are in excess of the impact
fees required as part of the development of the Property, such impact fee credits may be
transferred to any property within the boundaries of the lands that are a part of the Ocoee
Business Park Preliminary Subdivision Plan, Sheet 3 of 13 of which is attached hereto as
Exhibit "C", upon written notice of such transfer to the City.
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(d) Following donation of the ROW Parcel to the City, the City shall be responsible for
maintaining the ROW Parcel.
(e) In accordance with the City Land Development Code, credit for the conveyance of
the ROW Parcel shall be valued at fair market value established by an independent appraisal
which is prepared by a MAI appraiser who is approved by both parties. The appraisal will be
performed at the City's expense. The value of the right-of-way shall be the total number of
acres, and/or fraction thereof, of the ROW Parcel multiplied by the appraised fair market value
of the Property. If the value of the ROW Parcel (as determined by this subsection (e)) is less
than the City impact fee obligation for the Property development, then the Owner must pay any
such difference at the time of the development of the Property.
(f) In addition to the impact fee credit specified in subsection (e), and as additional
consideration for the ROW Parcel, the Owner shall bear no financial responsibility for
improvements to the ROW Parcel as shown on the "CFEA Contract Plans 429 (Western Beltway)
Widening From Florida's Turnpike to West Road", 60% Plans dated May 2020 (on file with the
City Clerk), as such plans may be modified (the "Property Access Improvements").
Section 3. Assistance and Cooperation. The Owner and the City shall cooperate with
and assist each other to accomplish the Property Access Improvements. Additionally, the City
agrees to cooperate with the Owner in Owner's request to CFEA for access points and, to the
extent compatible with the Property Access Improvements, in Owner's request to CFEA for
alignment associated with CFEA development.
Section 4. Notice. Any notice delivered with respect to this Amendment shall be in
writing and be deemed to be delivered (whether or not actually received) when (i) hand
delivered to the other party, or (ii) when sent by overnight courier service for next business
day delivery (i.e., Federal Express), addressed to the party at the address set forth on the first
page of this Amendment, or such other person or address as the party shall have specified by
written notice to the other party delivered in accordance herewith.
Section 5. 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 6. Recordation of Amendment. The parties hereto agree that an executed
original of this Amendment shall be recorded by the City, at the Owners' expense, in the
Public Records of Orange County, Florida.
Section 7. Applicable Law. This Amendment and the provisions contained herein
shall be construed, controlled, and interpreted according to the laws of the State of Florida.
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Section 8. Time of the Essence. Time is hereby declared of the essence to the lawful
performance of the duties and obligations contained in this Amendment.
Section 9. Amendment. The Development Agreement and this Amendment constitutes
the entire agreement between the parties, and supersedes all previous discussions,
understandings and agreements, with respect to the subject matter hereof. All terms and
provisions in the Development Agreement not amended herein shall remain in full force and
effect. Agreements to and waivers of any of the provisions of this Amendment shall be made
by the parties only in writing by formal amendment.
Section 10. 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 11. 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 Amendment 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, paralegal 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 12. 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 13. Captions. Captions of the Sections and Subsections of this Amendment 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 Amendment.
Section 14. Severability. If any word, sentence, phrase, paragraph, provision, or
portion of this Amendment 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 Amendment can still be achieved.
Section 15. 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.
SIGNATURES TO FOLLOW
Ire
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
in the presence of:
Print Name
Print
STATE OF FLORIDA
COUNTY OF ORANGE
OWNER:
OCOEE BUSINESS PARK, L.L.C., a
Florida limited liability company
By.,
C. Bruce Gordy
A its Manager
The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑
online notarization, this j! day of December, 2020 by C. Bruce Gordy as Manager of Ocoee
Business Park, L.L.C., a Florida limited liability company, on behalf of the company, who is
personally known to me or who has produced as identification.
Signature of Notar
Name of Notary (Typed, Printed or Stamped)
Commission Number Of not legible on seal):
My Commission Expires (if not legible on seal):
9M]
PFpIFfERI0t11t�161'44cWbetlB,yP�
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Signed, sealed and delivered
in the presence of:
Print
Print
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA.
Approved as to form and legality this
_ day of 2020.
SHUFFIELD, LOWMAN AND WILSON,
P.A.
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
CITY:
CITY OF OCOEE, FLORIDA
By:
Rusty Johnson, Mayor
Attest:
Melanie Sibbitt, City Clerk
(SEAL)
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD
ON , 2020,
UNDER AGENDA ITEM NO.
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared by means of ❑
physical presence or ❑ online notarization 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.
WITNESS my hand and official seal in the County and State last aforesaid this
day of 2020.
Signature of Notary
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seat);
My Commission Expires (if not legible on seal);
11:is
Exhibit A: Ocoee Business Park Legal Desciption
Exhibit B: ROW Parcel
Exhibit C: Sheet 3 of 13 of the Ocoee Business Park
Preliminary Subdivision Plan
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LINE 122.OS FEET TO THE POINT OF
PARCEL 4:
A PARCEL OF RAND LING IN S2TPV 10, GAWRINP P2
SOUTH, RANGE 2O EAST ORANGE COUNTY. FLORIDA
SEND MORE PMTCULAAY DESCRIBED AS FOLLOWS:
EXHIBIT "A"
THE PROPERTY
LEGAL DESCRIPTION
PARCEL 3 IS WHERE ROW FOR SHARED PATH IS LOCATED
POItLn is PARCEL 2
A PARCEL OF Wi0 LMG IN SECTOR! 14 T fi*IMP 22 A PMCf1 OF LANR1 LINO IN MOM 1% TDAN9AP 22
BWTHI RANGE 2B EAST ORANGE COUNTY, FLORIDA SOUTH. RANGE 25 EAST ORANGE COUNTY, FLORIDA
'ONG MORE PMTCUMLY DESCRIBED AS FCLLOM USING MOVE PAVTPIIAALY MCWOED AS FOLLOWS.
PMC0. k
A PARCEL OF LVIA -MG W MIO! 14-1OM51P M
SOUTH, RANGE 28 EAST ORANGE COUNTY. FLORIDA
SEND MORE PARTOJLAALY DESCRIBED AS FOLOM
PARCEL 5:
A PARCD. OF LAND LAND IN SECTEN 1& TOMRFSP 22
SOUTL RANGE 28 FAST ORANGE COUNTY, FLORIDA
DONC MORE PART4ULARLY DESCRIBED AS,FMWM:
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EXHIBIT "C"
SHEET 3 OF 13 OF THE OCOEE BUSINESS PARK PSP
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