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HomeMy WebLinkAboutItem 12 Approval of the Drainage Easement Agreement with GS Crown Point Owner, LLC (FKA Wire Development) for Drainage Outfall Pipe Going Under a New City Road in the Ocoee Crown Point PUD for the Ocoee Crown Point Mixed-Use ProjectMeeting Date: December 5, 2023 Item #: 12 Contact Name: Michael Rumer Department Director: Michael Rumer Contact Number: Ext. 1018 City Manager: Robert Frank Background Summary: The Ocoee Crown Point PUD currently has a new Orange County Public Schools (OCPS) Technology Center on a tract owned by OCPS. However, a new road to access the Technology Center is being constructed by OCPS on a tract being purchased by GS Crown Point Owner, LLC (FKA Wire Development) for the Ocoee Crown Point Mixed -Use Project. A drainage outfall pipe is being placed under the road to take the stormwater from the Ocoee Crown Point Mixed -Use Project Tract to Pond 10 on OCPS land. In order to have the pipe under the new public road, a drainage easement is required. Issue: Should the Honorable Mayor and City Commissioners approve a Drainage Easement Agreement with GS Crown Point Owner, LLC (FKA Wire Development) for a drainage outfall pipe going under a new City road in the Ocoee Crown Point PUD for the Ocoee Crown Point Mixed -Use Project? Recommendations: Staff recommends the Honorable Mayor and City Commissioners approve a Drainage Easement Agreement with GS Crown Point Owner, LLC (FKA Wire Development) for a drainage outfall pipe going under a new City road in the Ocoee Crown Point PUD for the Ocoee Crown Point Mixed -Use Project? Attachments: 1. Outfall Pipe Location Map 2. Drainage Easement for Pond 10 Outfall Pipe Financial Impacts: N/A Type of Item: Consent City of Ocoee .. Avenue - • •_- Florida 34761 Page 129 of 593 3 0 0 o 0 b�v � 4� "* CL 2 u ill to x U --fR2 ui z 0 irsial 08 Page 130 of 593 INSTRUMENT PREPARED BY AND RETURN TO: Greenberg Traurig, P.A. 333 SE 2"1 Ave., 41" Floor Miami, FL 33131 Attn: Kimberly S. LeCompte, Esq. DRAINAGE EASEMENT AGREEMENT THIS DRAINAGE EASEMENT AGREEMENT ("Agreement") is made as of , 2023 (the "Effective Date"), by and between CITY OF OCOEE, a Florida municipal corporation, established under the laws of the State of Florida, with an address of 150 N. Lakeshore Drive, Ocoee, Florida 34761 ("Grantor"), and GS CROWN POINT OWNER, LLC, a Delaware limited liability company, with an address of ("Grantee"). Recitals A. Grantor is the fee simple owner of the property more particularly described on Exhibit "A" attached hereto and made a part hereof (the "Grantor Parcel"). B. Grantee is the fee simple owner of the property more particularly described on Exhibit "B" attached hereto and made a part hereof (the "Grantee Parcel"). C. As of the Effective Date of this Agreement, a pond and associated outfall pipes providing for stormwater management have been constructed, installed and located on property owned by the School Board of Orange County, Florida (the "Pond 10 Facilities"), and certain pipes that are included in the Pond 10 Facilities exist over, under, upon, through and across a portion of the Grantor Parcel, as more particularly described and depicted on Exhibit "C" attached hereto and made a part hereof (collectively, the "ROW Drainage Facilities"). D. Grantee desires to obtain a perpetual and non-exclusive drainage easement from. Grantor over, under, upon, through and across the portion of the Grantor Parcel upon which the ROW Drainage Facilities are located (the `Basement Parcel") for the construction, installation, connecting and maintaining of the ROW Drainage Facilities and stormwater drainage serving the Grantee Parcel. NOW, THEREFORE, in consideration of the foregoing Recitals and the further provisions of this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Parties mutually agree as follows: ACTIVE 691282329v2 Page 131 of 593 1. Recitals. The foregoing recitals are true and correct and are incorporated by this reference as substantive provisions of this Agreement. 2. Grant of Drainage Easement. Grantor hereby grants to Grantee a perpetual non- exclusive easement, for the benefit of Grantee, over, under, upon, through and across the Easement Parcel, for the construction, installation, connecting and maintaining of the ROW Drainage Facilities and stormwater drainage serving the Grantee Parcel (the "Drainage Easement"). 3. Maintenance of ROW Drainage Facilities. (a) Grantor, at its sole cost and expense, agrees to maintain, repair, replace and operate the ROW Drainage Facilities consistent with all applicable laws and rules of all local, state and federal entities or agencies having jurisdiction over the ROW Drainage Facilities, including all applicable environmental resource permits and other applicable permits and approvals issued by any governmental entity or agency having jurisdiction over such ROW Drainage Facilities. (b) Grantor, on behalf of itself and its successors and assigns, agrees not to take any action on or to the Easement Parcel which would unreasonably interfere with the operation, maintenance, or use of the ROW Drainage Facilities. Notwithstanding the foregoing, Grantor reserves unto itself and its respective successors and assigns, the right to use Easement Parcel; provided, however, that such use does not conflict with or adversely impair the easement rights granted under the Drainage Easement or interfere with or cause damage to the ROW Drainage Facilities. 4. Relocation. Grantor shall not be permitted to relocate the ROW Drainage Facilities without the prior written consent of Grantee, which such consent shall not be unreasonably, withheld conditioned or delayed. In the event Grantee consents to such relocation, then such relocation shall be governed by the following terms: (a) Grantor shall pay the full cost of the relocation of the ROW Drainage Facilities, including any costs associated with relocating stormwater facilities constructed on the Grantee Parcel, and (b) Grantor and Grantee shall execute and deliver an acceptable and recordable amendment to this Agreement to cover such relocated ROW Drainage Facilities. Upon the completion of any relocation, the easement herein shall be considered cancelled as to the portion of the ROW Drainage Facilities vacated by such relocation. 5. Additional Rights. In addition to the rights specifically granted above, Grantee shall have and is hereby granted any and all such further and ancillary rights as are or may be necessary for Grantee to be able to fully utilize and enjoy the rights specifically granted hereby, including, without limitation, a right of ingress, egress and access over other portions of the Grantor Parcel to provide access to the ROW Drainage Facilities. In connection with the exercise of any and all rights and easements granted in this Agreement, Grantee shall use commercially reasonable efforts to minimize interference with the use and enjoyment of the Grantor Parcel. 6. Reserved Rights. Grantor reserves unto itself, and its successors, assigns, mortgagees, tenants, lessees, and invitees the right to use the Grantor Parcel, including, without limitation, the areas affected by any easement granted herein, at any and all times for any and all purposes which do not unreasonably interfere with the exercise of the rights and easements by Grantee thereof, including, without limitation, the right to install fencing and landscaping, but specifically excluding the right to construct or install buildings, or structures, over the Easement Parcel,. Grantor also hereby reserves the right to grant other easements to other persons or entities over, 2 ACTIVE 691282329v2 Page 132 of 593 under, across and through the Grantor Parcel including, without limitation, portions of such property subjected to the easement granted in this Agreement, provided the same are not inconsistent with and do not unreasonably interfere with the purposes set forth in this Agreement. 7. Indemnification Related to Discharges or Damage. Grantee agrees to indemnify, defend, and hold Grantor harmless from and against any and all claims, damages, liabilities, costs, expenses, causes of action, suits and/or judgments, of whatsoever kind or nature, arising out of its use of the Easement Parcel. Grantee agrees to promptly repair, replace and/or restore (as appropriate) any damage to the Grantor Parcel resulting from the exercise of its rights under this Agreement. To the extent permitted by applicable law and expressly limited to the amounts set forth in §768.28, Fla. Stat. (2023), Grantor agrees to indemnify, defend and hold Grantee harmless from and against any and all claims, damages, liabilities, costs, expenses, causes of action, suits and/or judgments, of whatsoever kind or nature, arising out of a breach of Grantor's obligations under this Agreement. Grantor agrees to promptly repair, replace and/or restore (as appropriate) any damage to the ROW Drainage Facilities resulting from the exercise of its reserved rights under this Agreement. Other than the above limited indemnity not to exceed the amounts set forth in §768.28 Fla. Stat. (2023), nothing in this agreement shall be construed as a waiver of Grantor's sovereign immunity. 8. Notices. All notices and other communications required or permitted to be given hereunder shall be in writing, and shall be mailed by certified or registered mail, postage prepaid, or sent by Federal Express or similar overnight delivery service, addressed to the recipient at its address set forth in this Agreement or, as to the undersigned parties' successors and assigns, as contained in the records of the Property Appraiser of Orange County, Florida. Notice shall be deemed given upon receipt or rejection by the recipient. 9. Binding Effect. The terms, conditions and other provisions set forth herein shall run with the title to the Grantor Parcel and Grantee Parcel and each part thereof and shall bind and inure to the benefit of the undersigned parties and their respective successors and assigns. 1.0. Severability. If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstance shall at any time or to any extent be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement and the application of the subject term, covenant, condition or provision to persons or circumstances other than those to which it was held invalid, illegal or unenforceable shall not be affected thereby, and each term, covenant condition and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law. 11. General Provisions. No failure of either party to exercise any power given hereunder or to insist upon strict compliance with any obligation specified herein, and no custom or practice at variance with the terms hereof, shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, personal representatives, successors, and assigns. Time is of the essence of this Agreement. Wherever, under the terms and provisions of this Agreement, the time for performance falls upon a Saturday, Sunday, or legal holiday recognized by the Federal government or the State of Florida, such time for performance shall be extended to the next day that is after such date and is not a Saturday, Sunday or legal holiday. The headings inserted at the beginning of each paragraph are for convenience only, and do not add to or subtract from the meaning of the contents of each paragraph. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. 3 ACTIVE 691282329v2 Page 133 of 593 12. Covenants Running with the Land. The provisions of this Agreement shall constitute covenants running with the land pursuant to Florida law. 1.3. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Venue for any action arising out of this Agreement shall lie exclusively in the state courts in and for Orange County, Florida. 1.4. Attorneys' Fees. In the event of a dispute concerning the interpretation and/or enforcement of the terms hereof, the prevailing party in any such dispute shall be entitled to recover from the non -prevailing party costs and expenses incurred in connection therewith, including, but not limited to, reasonable attorneys' fees, paralegal, consultant and other expenses incurred prior to trial, at trial, on appeal or in connection with any administrative or bankruptcy proceedings. 1.5. Multiple Counterparts. This Agreement may be executed in counterparts, each of which shall be an original document and all of which together shall constitute one and the same Agreement. Signature and acknowledgement pages may be detached from the counterparts and collated to physically form one document. 1.6. Further Assurances The parties hereby agree that at any time following a request therefore 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 or effectuate the obligations of either party hereunder. 1.7. Entire Agreement; Modification. This Agreement contains the entire agreement of the parties and may not be changed except by written agreement duly executed by the parties hereto. This Agreement supersedes any prior understanding and agreements between the parties with respect to the subject matter hereof, and there are no representations, warranties, or oral agreements other than those expressly set forth herein. 18. Authority. Each parry warrants and represents, with respect to itself, that neither the execution nor the performance of this Agreement requires any consent, vote or approval which has not been obtained, or at the appropriate time shall not have been given or obtained, nor shall it result in or constitute a breach or default under any indenture, contract, or other commitment or restriction to which it is a party or by which it is bound. [Signature Pages Follow] 4 ACTIVE 691282329v2 Page 134 of 593 IN WITNESS WHEREOF, the Parties have made this Agreement as of the day and year first above written. WITNESSES: Print Name: Print Name: FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE. APPROVED AS TO FORM AND LEGALITY THIS DAY OF ,20 . Attorney STATE OF FLORIDA COUNTY OF ORANGE GRANTOR CITY OF OCOEE, FLORIDA a Florida municipal corporation By: _ Name: Title: Attest: City Clerk The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, this day of , 20 , by , as of CITY OF OCOEE, FLORIDA, a Florida municipal corporation, on behalf of the corporation. He/She is either personally known to me or has produced the following identification: (SEAL) ACTIVE 691282329v2 Notary Public: My Commission Expires: 5 Page 135 of 593 WITNESSES: Print Name: Print Name: STATE OF FLORIDA COUNTY OF HILLSBOROUGH GRANTEE GS CROWN POINT OWNER, LLC, a Delaware limited liability company By: _ Name: Title: The foregoing instrument was acknowledged before me by means of ❑ physical presence or ❑ online notarization, this day of , 20_, by , as of GS CROWN POINT OWNER, LLC, a Delaware limited liability company, on behalf of the company. She/He is either personally known to me or has produced the following identification: (SEAL) ACTIVE 691282329v2 Notary Public: My Commission Expires: Co Page 136 of 593 EXHIBIT "A" Grantor Parcel ACTIVE 691282329v2 Page 137 of 593 EXHIBIT `B" Grantee Parcel ACTIVE 691282329v2 Page 138 of 593 EXHIBIT "C" ROW Drainage Facilities ACTIVE 691282329v2 Page 139 of 593