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HomeMy WebLinkAboutItem 02 Approval of the Development Agreement with Montierre Development, PLLC, for the Ocoee Regional Sports Complex City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org STAFF REPORT Meeting Date: May 18, 2023 Item #: 2 Contact Name: Michael Rumer Department Director: Michael Rumer Contact Number: Ext. 1018 City Manager: Robert Frank Subject: Approval of the Development Agreement with Montierre Development, PLLC, for the Ocoee Regional Sports Complex. (Development Services Director Rumer) Background Summary: On December 6, 2022, the City entered into a Memorandum of Understanding with Montierre Development, PLLC, to help facilitate a Proposed Regional Sports and Entertainment Complex which will consist of 16 Baseball Fields, 9 Batting Cages, Multi-Purpose Fields, Recreation Park and Playground areas, a Splash Pad area and Welcome Center. The Sports and Entertainment Complex will be Anchored by a Mixed Use Center which will consist of 3 Hotels with up to 600 Rooms, Seven (7) Retail/Restaurant Buildings, 20k SF ± of Office Space and two (2) Parking Garages with 1,600 parking spaces. The Memorandum of Understanding (as attached) provided the City’s Commitment to obligations in order to move the project forward. Since the approval of the Memorandum of Understanding in December of 2022, City Staff, Montierre Development PLLC, City Attorney Scott Cookson have been finalizing a Development Agreement to facilitate all of the obligations contained within the Memorandum of Understanding. Simultaneously, City Staff, City Attorney Scott Cookson, Montierre Development PLLC, and representatives of Chevron have been working toward a Purchase and Sale Agreement for the Chevron Property. Both documents have been completed and approved by City Staff and City Attorney Scott Cookson to be approved and executed by the Honorable Mayor. Key elements of the Development Agreement are: Section 3(C). The City agrees to cooperate with Montierre, at no additional cost or expense to the City, in Montierre’s pursuit of any tourist tax funds which may be utilized in connection with the development of the Project. Section 4. Elements for the Closing of the Chevron Property. Section 5. The City, at its sole cost and expense, shall be responsible for processing such applications and approvals as may be required in order to designate the Chevron Property and the City Property as a Brownfield Area (Currently in Process). Section 6. Conditioned upon Montierre’s acquisition of the Chevron Property, the City will convey to Montierre the City Property by special warranty deed on the date of Montierre’s acquisition of the Chevron Property, subject only to taxes for the year of closing. In the event of a termination of the Chevron Contract for any reason, the City’s obligation to convey and Montierre’s obligation to purchase the City Property shall be null and void and of no further force or effect. Section 7(A). In addition to the economic benefits to the City in having the Project within the City, the City will receive, as compensation for the assignment of the Chevron Contract to Montierre and the conveyance of the City Property to Montierre, the following: (a) $20.00 for each night a hotel room is rented out within the Project, Page 77 of 96 City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org and (ii) twenty-five percent (25%) of all fees collected for each parking space per day within a parking garage rented out within the Project up to the amount of $5.00 per parking space per day. It is anticipated that the daily fee for parking within a parking garage will be equal to or exceed $20.00 per parking spot. Such payments shall be for a period of no less than thirty (30) years from the date of the build-out of the Project. Section 7(B). Montierre shall guarantee that the City will receive at least Eight Hundred Thousand Dollars ($800,000.00) per year from the Payment Obligation Documents until the City has received Eight Million Dollars ($8,000,000.00). Section 7 (C). The City shall provide to Montierre a tax abatement of City of Ocoee property taxes (but not other property taxes due and owing other than to the City of Ocoee) for the Project for a period of five (5) years. Section 9. Montierre shall be responsible for improvements to Ocoee-Apopka Road from the intersection of West Road south to Franklin Street intersection, and potentially other area improvements, consisting of road widening and infrastructure improvements to accommodate the Project all in accordance with applicable roadway requirements and plans approved by the City based on the review of the Project and the traffic study conducted for the Project. Section 9. The City agrees to use good faith efforts to seek federal, state and/or county participation or contributions toward the Ocoee-Apopka Road Improvements. Section 9. Montierre shall be entitled to transportation impact fee credits for the Ocoee Apopka Road Improvements. However, Montierre shall not be entitled to an amount of transportation impact fee credits that exceed the amount of transportation impact fees calculated for the Project. Section 10. Montierre shall build two (2) new baseball fields for the City’s Parks and Recreation Department on City property for the City’s use for City youth leagues at its sole cost and with limited use rights. Issue: Should the Honorable Mayor and City Commissioners approve a Development Agreement with Montierre Development, PLLC, for the Ocoee Regional Sports Complex? Recommendations: Staff recommends the Honorable Mayor and City Commissioners approve the Development Agreement between Montierre Development, PLLC, and the City of Ocoee. Attachments: 1. Memorandum of Understanding_Montierre Development PLLC 2. Ocoee Regional Sports Complex Development Agreement Financial Impacts: Financial Obligation to Provide Road Impact Fee Credits Towards Improvements to Ocoee Apopka Road (Not to Exceed the Amount of Road Impact Fees Generated by the Project) Guarantee payments to the City of at least Eight Hundred Thousand Dollars ($800,000.00) per year from the Payment Obligation Documents until the City has received Eight Million Dollars ($8,000,000.00). Type of Item: Regular Page 78 of 96 MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING (this "MOU") is made and entered into as of December (p , 2022(the"Effective Date"),by and between the City of Ocoee,Florida, a Florida municipal corporation ("City"), with an address of 1 North Bluford Avenue, Ocoee, Florida 34761, and MONTIERRE DEVELOPMENT, PLLC, a Florida professional limited liability company ("Montierre"), with an address of 5669 SE Crooked Oak Ave., Hobe Sound, FL 33455. WHEREAS, Montierre is a commercial developer with experience in developing mixed- use projects and has a desire to develop a mixed use project within the City of Ocoee, Florida which would consist of a number of baseball fields and related facilities, hotels, retail buildings and parking garages constructed on the Chevron Property (as defined herein), the Rodgers Properties (as defined herein) and the Rodgers Adjacent Property (as defined herein) (the Project"); and WHEREAS, Montierre is seeking commitments from one or more established amateur baseball event and scouting organizations to, upon completion of the Project, utilize the facilities within the Project; and WHEREAS, the City has an interest in facilitating the Project based on the benefits to the current and future residents of the City and the economic impact the Project would have within the City; and WHEREAS,the City and Montierre have agreed to enter into this MOU to set forth certain terms and obligations between the parties. NOW,THEREFORE,in consideration of the foregoing and other valuable consideration,the receipt and sufficiency of which are acknowledged, the City and Montierre hereby agree as to the following: 1. Recitals. The above recitals are true and correct and are incorporated in this MOU by reference as if set forth in full herein. 2.Understandings. The parties set forth their understandings under this MOU as follows: a.Chevron Property. i. The City will use good faith efforts to enter into a contract for the purchase (the "Chevron Contract") of that approximately 95.1 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-001, located in the City of Ocoee, Orange County, Florida east of Ocoee-Apopka Road and south of Fullers Cross Road and owned by, or Page 1 of 4 Page 79 of 96 by an affiliate of, Chevron Land and Development Company, Delaware corporation (the Chevron Property"); ii. The parties anticipate that the Chevron Contract will be for a purchase price of approximately $4,200,000.00, will require that the buyer thereof to perform certain environmental remediation work and require the buyer to release and indemnify the seller, and seller-related entities, for all environmental claims relating to the Chevron Property; iii. The parties further anticipate that the Chevron Contract will be assignable and that the City would assign the Chevron Contract to Montierre such that Montierre would purchase the Chevron Property directly from the owner thereof, reimburse the City for any deposits made by the City under the Chevron Contract,perform the required remediation work and provide the release and indemnity to the Seller and the seller-related entities. Other that entering into the Chevron Contract and assigning the Chevron Contract to Montierre, the City would have no obligations under the Chevron Contract; and iv. The parties will work together in good faith to negotiate the terms of the Chevron Contract with the seller thereof. b. Rodgers Property. Montierre would be responsible for, at Montierre's sole cost and expense,for the acquisition of one or more of the following parcels(i)that approximately 2.096 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-039; (ii) that approximately 2.228 acre parcel under Orange County Property Appraiser Parcel ID: 07-22- 28-0000-00-041; (iii) that approximately 5.017 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-043; (iv) that approximately 1.178 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-105; (v) that approximately 1 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-074; (vi) that approximately 0.145 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28- 0000-00-031; (vii) that approximately 0.348 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-067; (viii) that approximately 1.405 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-068; (ix) that approximately 2.092 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-042; and (x) that approximately 0.402 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28- 0000-00-061,all located in the City of Ocoee,Orange County,Florida east of Ocoee-Apopka Road and south of the Chevron Property (the "Rodgers Properties"). c.Rodgers Adjacent Property. i. Conditioned upon Montierre's acquisition of the Chevron Property and the Rodgers Properties, the City will convey to Montierre that approximately 37.1 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-023,located in the City of Ocoee, Orange County, Florida north, east and south of the Rodgers Properties (the "Rodgers Adjacent Property"). ii. The parties anticipate the appraised value of the Rodgers Adjacent Property will be less than $8,000,000.00. Page 2 of 4 Page 80 of 96 iii. The parties agree to use good faith efforts to enter into an agreement for the conveyance of the Rodgers Adjacent Property from the City to Montierre. d.Development of the Project. Montierre, at Montierre's sole cost and expense, shall develop the Project. e.Payment to the City. In addition to the economic benefits to the City in having the Project within the City,the City will receive, as compensation for the assignment of the Chevron Property and the conveyance of the Rodgers Adjacent Property to Montierre, the following: $20.00 for each night a hotel room is rented out within the Project and $5.00 for each parking space within a parking garage rented out within the Project. Such payments shall be for a period of no less than thirty(30)years from the build-out of the Project. Montierre shall be entitled to all other revenues relating to the Project. f.Additional Agreements. i. Montierre will be responsible for improvements to Ocoee-Apopka Road and the City will provide transportation impact fee credits for such improvements. ii. Montierre will make certain improvements to existing ballfields within the City. iii. The City will have limited use rights to certain of the ballfields within the Project during no-peak use times and days without charge to the City. iv. The City will cooperate with Montierre to obtain tourist tax funds for the development of the Project. v. The City will provide a tax abatement for City of Ocoee property taxes for a period not to exceed five (5) years commencing from the conveyance of the Rodgers Adjacent Property. 3. Development Agreement. City and Montierre agree to use good faith efforts to memorialize the terms of this MOU in a Development Agreement for Project (the "Development Agreement"). Once the parties have entered into the Development Agreement, this MOU shall terminate and be of no further force or effect. 4.Binding Effect. The terms and provisions of this MOU shall be binding upon and inure to the benefit of the City and Montierre, and their representatives, successors, and assigns. The burdens hereof shall run with the land,with the effect that any person or entity which acquires an interest in the Property shall be bound by the burdens hereof. In the event of any conflict between the terms and conditions of this MOU and the teinis of the Development Agreement, the terms of the Development Agreement shall control. Page 3 of 4 Page 81 of 96 IN WITNESS WHEREOF,by their signatures below, the parties have caused this MOU to be executed and effective as of the Effective Date. MONTIERRE DEVELOPMENT, PLLC, a Florida professional limited liability pany By: d.V Name: .mod/l fik)(/ ,- Title AWL CITY OF OCOEE, a Florida municipal corporation By RUSTY JOHN _- N Mayor Attest: MELANIE SIBBITT City Clerk APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON,fJe/WrthUt I , 2022, UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this 014 day of 2`-C2 ,2022. SHUFFIELD LOWMAN&WILSON,P.A. By: City horn Page 4 of 4 Page 82 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) THIS DEVELOPMENT AGREEMENT (this “Agreement”) is made and entered into as of the __ day of _________, 2023 by and between MONTIERRE DEVELOPMENT, PLLC, a Florida limited liability company, whose mailing address is 5669 SE Crooked Oak Ave., Hobe Sound, FL 33455 (“Montierre”), and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 1 North Bluford Ave., Ocoee, Florida 34761, Attention: City Manager (hereinafter referred to as the “City”). W I T N E S S E T H: WHEREAS, the Montierre is a commercial developer with experience in developing mixed-use projects; and WHEREAS, Montierre intends to develop a mixed use project within the corporate limits of the City of Ocoee, Florida which is anticipated to consist of (i) sixteen (16) baseball fields; (ii) batting cages; (iii) multi-purpose fields; (iv) an inclusive recreation park and playground; (v) splash pad area; (vi) welcome center; (vii) promenade; (viii) three (3) hotels each with approximately 600 rooms and parking garages; (ix) seven (7) restaurants/retail buildings; (x) six (6) office/retail buildings; and (xi) two parking garages to accommodate approximately 1,600 parking spaces, together with related facilities and generally consistent with the conceptual depictions attached hereto as Exhibit “A” (the “Project”); and WHEREAS, the Project is anticipated to be constructed on the following parcels located in the City of Ocoee, Orange County, Florida east of Ocoee Apopka Road and south of Fullers Cross Road: (i) that approximately 95.1 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-001 (the “Chevron Property”), and as of the date hereof owned by Chevron Land and Development Company, a Delaware corporation (“Chevron”); (ii) that approximately 37.1 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-023 (the “City Parcel”), and as of the date hereof owned by the City; (iii) that approximately 2.096 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-039 (“Parcel A”); (iv) that approximately 2.228 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-041 (“Parcel B”); (v) that approximately 5.017 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-043 (“Parcel C”); (vi) that approximately 1.178 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-105 (“Parcel D”); Page 83 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) (vii) that approximately 1.0 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-074 (“Parcel E”) (viii) that approximately 9.901 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-087 (“Parcel F”); and (ix) that approximately 14.934 acre parcel under Orange County Property Appraiser Parcel ID: 07-22-28-0000-00-080 (“Parcel G”); Parcel A, Parcel B, Parcel C, Parcel D, Parcel E, Parcel F and Parcel G, are collectively referred to herein as the “Remnant Parcels”; the Remnant Parcels together with the Chevron Property and the City Property, are collectively referred to herein as the “Property”); and WHEREAS, Montierre has secured or intends to secure the financing necessary to construct the Project and has or intends to secure a commitment from an established amateur baseball event and scouting organization (the “Baseball Organization”), who will utilize the baseball-related facilities within the Project pursuant to a separate agreement between Montierre and the Baseball Organization; and WHEREAS, the City desires to facilitate the Project based on the benefits to the current and future residents of the City and the economic impact the Project will have within the City and surrounding areas; and WHEREAS, the City and Montierre have entered into this Agreement setting forth certain terms and obligations with respect to the Project. 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. The above recitals are true and correct and incorporated herein by this reference. Section 2. Development Approvals. Nothing herein will be construed as a grant by the City or waiver by the City as to any development approvals that may be required in connection with the plans for the Project or Montierre’s development of the Project; notwithstanding this Agreement, Montierre must comply with all applicable procedures and standards relating to the development of the Project. However, the City agrees to review and consider for approval Montierre’s applications and plans for the Project pursuant to the City’s established review and approval process in a timely manner so as not to unreasonably delay Montierre’s established performance and milestone schedules for the Project. In addition, the City agrees to timely complete such applications that may reasonably be required of the City as the owner of the City Property. Section 3. Development of the Property. (A) Development Requirements. Montierre hereby agrees to develop the Project on the Property in accordance with the terms of this Agreement and the Ocoee Land Page 84 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) Development Code and consistent with the final plans, including any conditions of approval set forth therein, permits and approvals issued by the City and other governmental entities with respect to the Property. The parties recognize that the improvements within the Project are subject to change based on plans and approvals for the Project and development requirements for the Property and may be developed in multiple phases. Notwithstanding the forgoing, Montierre agrees not to materially modify the improvements within the Project without the prior consent of the City, not to be unreasonably withheld, conditioned or delayed. (B) Condition to City Obligations. Notwithstanding anything contained herein to the contrary, the City’s obligations with respect to completing applications and/or reviewing and processing applications and approvals contained herein are specifically conditioned on Montierre developing the Project consistent with the requirements set forth in this Section 3 and elsewhere in the Agreement. (C) Tourist Tax Funds. Notwithstanding anything contained herein to the contrary, the City agrees to cooperate with Montierre, at no additional cost or expense to the City, in Montierre’s pursuit of any tourist tax funds which may be utilized in connection with the development of the Project. Section 4. Chevron Property. (A) Chevron Contract; Inspections. Of even date herewith, the City has entered into a contract with Chevron for the purchase of the Chevron Property (the “Chevron Contract”). Montierre hereby acknowledges that Montierre had the opportunity to review, provide comments on, take part in the negotiations with respect thereto and has approved the Chevron Contract. The City’s review, comments, negotiations and execution of the Chevron Contract was and is done as an accommodation to Montierre. Pursuant to the terms of the Chevron Contract, Montierre has the right to enter upon the Chevron Property and conduct such due diligence and testing as permitted under the terms of the Chevron Contract. The City shall have no responsibility to perform or review any due diligence materials relating to the Chevron Property; Montierre, at Montierre’s sole cost and expense, agrees to perform all due diligence with respect to the purchase of the Chevron Property during the inspection period under the Chevron Contract. All due diligence and reports shall be contracted for and in the name of Montierre and not the City. In addition, Montierre agrees that all access and testing done on the Chevron Property shall be done consistent with the terms of the Chevron Contract, including providing evidence of insurance that may be required under the Chevron Contract. Montierre agrees to pay for all due diligence work and reports and agrees not to allow any lien to be placed on the Chevron Property relating to such work and reports. (B) Pre-Closing Indemnification. Montierre hereby agrees to indemnify, defend, release and hold the City harmless with respect to Montierre’s entry, due diligence and pre-closing obligations relating to the Chevron Property and/or under the Chevron Contract. To the extent, the purchaser under the Chevron Contract assumes any pre-closing liability with respect to the Chevron Property, as between Montierre and the City, Montierre agrees that such liability is solely assumed by Montierre and not the City. To the extent the purchaser under the Chevron Contract has a pre-closing indemnification, duty to defend, release and or hold harmless obligation as to Chevron, Montierre, and not the City, shall have such Page 85 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) obligations and Montierre agrees to indemnify, defend, release and hold harmless the City for the same obligations and to the same extent as required under the Chevron Contract as to Chevron. (C) Post-Closing Indemnification. Montierre hereby agrees to indemnify, defend, release and hold the City harmless with respect to all obligations of Montierre that survive the termination or closing under the Chevron Contract, including, but not limited to environmental remediation work that may be required. To the extent, the purchaser under the Chevron Contract assumes any post-closing liability with respect to the Chevron Property, as between Montierre and the City, Montierre agrees that such liability is solely assumed by Montierre and not the City. To the extent the purchaser under the Chevron Contract has a post- closing indemnification, duty to defend, release and or hold harmless obligation as to Chevron, Montierre, and not the City, shall have such obligations and Montierre agrees to indemnify, defend, release and hold harmless the City for the same obligations and to the same extent as required under the Chevron Contract as to Chevron. (D) Insurance Requirements under Chevron Contract. Following the assignment of the Chevron Contract to Montierre and thereafter during the term of the Chevron Contract, Montierre shall maintain the insurance required by Section 3.3(F) – (H) of the Chevron Contract. For any insurance obtained by Montierre pursuant to the Chevron Contract that requires that the “Seller Group” be named as an additional insured, Montierre hereby agrees to also name the City as an additional insured. (E) Environmental Indemnification Insurance. The parties acknowledge that the City would not have entered into the Chevron Contract without assurances that the City would incur no liability with respect to the investigations on, purchase of and/or development of the Chevron Property. Montierre’s indemnification, defense, release and hold harmless obligations set forth in subsections (A) and (B) are a material part of the City entering into this Agreement and the Chevron Contract. In addition to such obligations, Montierre has agreed to obtain environmental indemnification insurance relating to the Chevron Property either directly for the City or directly for Montierre with the City being named as an additional insured (the “Environmental Insurance”). Montierre agrees to pay all premiums and costs and expenses relating to the Environmental Insurance. The City shall have the right to review and approve the Environmental Insurance obtained. While Montierre is principally responsible for all costs and expenses relating to the Environmental Insurance, the City may pay such amounts as necessary to keep such Environmental Insurance effective and Montierre shall be responsible for any costs expended by the City plus interest at twelve percent (12%) until paid. (F) Assignment of Chevron Contract. The Chevron Contract provides for the City’s assignment of the Chevron Contract to Montierre. On or before the expiration of the inspection period under the Chevron Contract, if Montierre so elects, the City agrees to assign all of the City’s rights and obligations under the Chevron Contract to Montierre. Montierre shall notify the City at least five (5) days prior to the expiration of the inspection period under the Chevron Contract whether or not Montierre desires to take an assignment of the Chevron Contract. In the event Montierre advises the City that Montierre does not desire to take an assignment of the Chevron Contract or in the event Montierre fails to timely provide notice of its desire to take an assignment of the Chevron Contract, the City may terminate the Chevron Contract prior to the expiration of the inspection period thereunder and with such termination, Page 86 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) Montierre and the City shall have not further obligations under the Chevron Contract except for those that survive termination of the Chevron Contract. As to any City obligations that survive termination of the Chevron Contract, the parties agree that Montierre shall solely assume the same. In the event Montierre does elect to take an assignment of the Chevron Contract, the parties shall execute an assignment document reasonably acceptable to both parties prior to the expiration of the inspection period under the Chevron Contract. Montierre agrees comply with all requirements relating to such assignment that may be set forth in the Chevron Contract. (G) Deposits under the Chevron Contract. Montierre shall be responsible for all deposits required to be made under the Chevron Contract. For deposits required prior to the assignment of the Chevron Contract, Montierre will, at the City’s election, pay such deposits for the City’s behalf as and when required under the Chevron Contract, or reimburse the City for such deposits made within five (5) days of a request for reimbursement by the City. Montierre, and not the City, shall be responsible for all deposits required under the Chevron Contract subsequent to the assignment of the Chevron Contract to Montierre. In the event the Chevron Contract is terminated for any reason and with such termination the purchaser thereunder is entitled to a return of the deposit or any portion thereof, such deposit or portion thereof shall belong to Montierre, and not the City except in the event the City made such deposit and Montierre failed to reimburse the City for such deposit in which case the City shall be entitled to retain the returned deposit or portion thereof. Section 5. Brownfield Designation. Notwithstanding anything to the contrary contained in this Agreement or the Chevron Contract, the City, at the City’s sole cost and expense, shall be responsible for processing such applications and approvals as may be required in order to designate the Chevron Property and the City Property as a brownfield area. The City agrees to use commercially reasonable diligent efforts to cause the designation of the brownfield area, but the City makes no guaranty that such designation will occur. The City agrees to keep Montierre informed as to the status of the brownfield designation. Section 6. City Property. Conditioned upon Montierre’s acquisition of the Chevron Property, the City will convey to Montierre the City Property by special warranty deed on the date of Montierre’s acquisition of the Chevron Property, subject only to taxes for the year of closing, entitlements in place and matters of record encumbering the Property (the “Permitted Exceptions”). In the event of a termination of the Chevron Contract for any reason, the City’s obligation to convey and Montierre’s obligation to purchase the City Property shall be null and void and of no further force or effect. Montierre shall be solely responsible for all closing costs and expenses relating to the City’s conveyance of the City Property. Notwithstanding the foregoing, the City shall be responsible for the City’s own attorney fees incurred with respect to the conveyance of the City Property to Montierre. The conveyance of the City Property to Montierre shall be for $1.00 and other good and valuable consideration, including the obligations contained in this Agreement. Within thirty (30) days following the expiration of the inspection period under the Chevron Contract, the City and Montierre shall enter into an agreement governing the conveyance of the City Property consistent with the terms hereof. In the event Montierre desires to enter upon the City Property or conduct testing of the City Property prior to the expiration of the execution of the contract for the purchase and sale of the City Property, the parties shall work together in good faith to agree upon a license agreement to permit the same prior to any such activities conducted by Montierre on the City Property. Page 87 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) Section 7. Compensation. (A) Payment to the City. In addition to the economic benefits to the City in having the Project within the City, the City will receive, as compensation for the assignment of the Chevron Contract to Montierre and the conveyance of the City Property to Montierre, the following: (a) $20.00 for each night a hotel room is rented out within the Project, and (ii) twenty- five percent (25%) of all fees collected for each parking space per day within a parking garage rented out within the Project up to the amount of $5.00 per parking space per day. It is anticipated that the daily fee for parking within a parking garage will be equal to or exceed $20.00 per parking spot. Such payments shall be for a period of no less than thirty (30) years from the date of the build-out of the Project. Matters relating to the payments described herein, including, but not limited to, the security for receipt of the same, the payment procedures and the auditing procedures shall be incorporated into one or more payment obligation documents that will be recorded against the Property at the time of the conveyance of the City Property (the “Payment Obligation Documents”). Prior to the City’s conveyance of the City Property to Montierre, the parties shall work together in good faith to agree on the form of the Payment Obligation Documents. (B) Minimum Guaranteed Payments. Notwithstanding Section 7(A) above, commencing at the end of the twelve (12) month period following the issuance of a Certificate of Occupancy for a Hotel or Parking Garage, but in no event later than three (3) years after closing of Chevron Property and repeating for ten (10) successive years, Montierre shall guarantee that the City will receive at least EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($800,000.00) per year from the Payment Obligation Documents until the City has received EIGHT MILLION AND NO/100 DOLLARS ($8,000,000.00). The foregoing minimum payment guarantee shall be incorporated and addressed in the Payment Obligation Documents. The Payment Obligation Documents shall also provide for Montierre’s obligation to reconvey the City Property to the City in the event Montierre fails to make one or more minimum payment guarantees. (C) Tax Abatement. Provided that Montierre is proceeding with the development of the Project and is otherwise not in default under this Agreement, from the date of the conveyance of the City Property to Montierre and continuing for the five (5) year period following the date Montierre opens any portion of the Project, the City shall provide to Montierre a tax abatement of City of Ocoee property taxes (but not other property taxes due and owing other than to the City of Ocoee) for the Project. Section 8. Remnant Parcels. Montierre shall be solely responsible, at Montierre’s sole cost and expense, for the acquisition of the Remnant Parcels. Montierre hereby agrees to indemnify, defend, release and hold the City harmless relating to any claims or disputes arising under any contracts or inspections relating to the Remnant Parcels. Section 9. Improvements to Ocoee-Apopka Road. As part of Montierre’s development of the Project, Montierre shall be responsible for improvements to Ocoee-Apopka Road from the intersection of West Road south to Franklin Street intersection, and potentially other area improvements, consisting of road widening and infrastructure improvements to accommodate the Project all in accordance with applicable roadway requirements and plans Page 88 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) approved by the City based on the review of the Project and the traffic study conducted for the Project (collectively, the “Ocoee-Apopka Road Improvements”). The Ocoee-Apopka Road Improvements may also include the acquisition and dedication of additional right of way, the construction of an off-site retention pond and the transfer of maintenance responsibility from Orange County to the City. The City agrees to use good faith efforts to seek federal, state and/or county participation or contributions toward the Ocoee-Apopka Road Improvements. The Ocoee-Apopka Road Improvements may be completed in phases so that certain portions of the Project may receive a certificate of completion and/or certificate of occupancy prior to the full completion of the Ocoee-Apopka Road Improvements, pursuant to a phasing schedule agreed to by Montierre and the City’s Development Services Department as part of the development approvals process for the Project. Montierre shall be solely responsible for the construction and costs relating to the Ocoee-Apopka Road Improvements; however, Montierre shall receive transportation impact fee credits as allowed under the Ocoee Land Development Code for Montierre’s actual and documented third party expenses relating to the Ocoee-Apopka Road Improvements with the amount of and timing of such credits being memorialized in an impact fee agreement entered into by the parties and determined as part of the review of the Project and the traffic study conducted for the Project. In the event a party other than Montierre contributes land, improvements or funds relating to the Ocoee-Apopka Road Improvements, Montierre shall not be entitled to transportation impact fee credits for the same. In addition, Montierre shall not be entitled to an amount of transportation impact fee credits that exceed the amount of transportation impact fees calculated for the Project. Section 10. Existing Ballfields. As part of Montierre’s development of the Project, Montierre shall build two (2) new baseball fields for the City’s Parks and Recreation Department on City property for the City’s use for City youth leagues (collectively, the “City Ballfield Improvements”). Montierre shall be solely responsible for the costs relating to the City Ballfield Improvements. Provided that the construction of the City Ballfield Improvements are not delayed through no fault of Montierre, the City may withhold the issuance of final certificates of occupancy within the Project until such time as the City Ballfield Improvements are completed and accepted. Section 11. Limited Use Rights. Montierre agrees that the City (and City affiliated or sponsored organizations at the election by the City) for no additional consideration shall have limited use rights to the ballfields within the Project. It is anticipated that such use rights will be during non-peak use times and days so as not to interfere with the use of the ballfields by the Baseball Organization. Prior to the conveyance of the City Property to Montierre the parties shall agree on the use rights and shall further document the same as a party deems appropriate. Section 12. Notice. Any notice delivered with respect to this Agreement shall be in writing and be deemed to be delivered (whether or not actually received) when (i) hand delivered to the other party, 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 opposite the party’s name below, or such other person or address as the party shall have specified by written notice to the other party delivered in accordance herewith: MONTIERRE: Montierre Development, PLLC Attention: Jaime Douglas Page 89 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) 5669 SE Crooked Oak Ave. Hobe Sound, FL 33455 E-Mail: jaime@montierredevelopment.com With a copy to: Shutts & Bowen, P.A. Attention: Daniel T. O’Keefe, Esq. 300 South Orange Avenue, Suite 1600 Orlando, FL 32801 E-Mail: DOkeefe@shutts.com CITY: City of Ocoee Attention: City Manager 1 North Bluford Ave. Ocoee, Florida 34761 E-Mail: rfrank@ocoee.org With a copy to: Shuffield, Lowman & Wilson, P.A. Attention: Scott A. Cookson, Esq. 1000 Legion Place, Suite 1700 Orlando, Florida 32801 Email: scookson@shuffield.com Section 13. Covenant Running with the Land. This Agreement shall run with the Property for a period of thirty (30) years following the date of the build-out of the Project and shall 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 14. Assignment. This Agreement may not be assigned by any party without the prior consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed. Section 15. 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 16. Time of the Essence. Time is hereby declared of the essence to the lawful performance of the duties and obligations contained in this Agreement. Section 17. 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 18. 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. Page 90 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) Section 19. Specific Performance. Both the City and the Montierre shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 20. 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, 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 21. 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 22. 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 23. Severability. If any word, 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. Section 24. Effective Date. The Effective Date of this Agreement shall be the day this Agreement is last executed by a party hereto and such date shall be inserted on Page 1 of this Agreement. [THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK] Page 91 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) IN WITNESS WHEREOF, Montierre 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 Name: MONTIERRE: MONTIERRE DEVELOPMENT, PLLC, a Florida professional limited liability company By: ______________________________ Print Name: Title: 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, by means of ☐ physical presence or ☐ online notarization personally appeared _____________________, as _________ of MONTIERRE DEVELOPMENT, PLLC, a Florida professional limited liability company, who ☐ is personally known to me or ☐ produced ______________________________ as identification, and that he/she acknowledged executing the same on behalf of said company 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 __________________, 2023. 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): Page 92 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) Signed, sealed and delivered in the presence of: Print Name: Print Name CITY: CITY OF OCOEE, FLORIDA By: Rusty Johnson, Mayor Attest: Melanie Sibbitt, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this ____ day of ___________, 2023. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON __________________________, 2023 UNDER AGENDA ITEM NO. _________________. SHUFFIELD, LOWMAN & WILSON, P.A. 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, by means of physical presence personally appeared 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 ______________, 2023. 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): Page 93 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) EXHIBIT “A” Depiction of Project The below depictions are conceptual only and, as of the date hereof, have not been reviewed or approved by the City. It is anticipated that the Project will change from what is depicted as part of the City’s normal site plan review process. Page 94 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) Page 95 of 96 DEVELOPMENT AGREEMENT (Ocoee Regional Sports Complex) Page 96 of 96