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Home My WebLink About02-20-2024 Emergency Item Approval of First Amendment to Utility Use Agreement (Ocoee Village) City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org STAFF REPORT Meeting Date: February 20, 2024 Item #: Contact Name: Michael Rumer Department Director: Craig Shadrix Contact Number: Ext. 1018 City Manager: Robert Frank Subject: Emergency Item - Approval of First Amendment to the Utility Use Agreement for the Ocoee Village Center. (Utilities Director Croteau) Background Summary: In October 2023, the City entered into a Utility Use Agreement with DKC Ocoee Village Center SE, LLC, Kimaya Ocoee Village, LLC, and NRP also referred to as the Ocoee Village Developers Consortium (Developers). In October, the Developers had not finished all off-site improvements to the level needed to achieve a Certificate of Completion. However, although the road had not been finished, the majority of the utility work had been completed to a level that would allow the City to operate the water and sewer infrastructure along the realigned Lakewood Avenue extension. The Utility Use Agreement allowed the Allure Multi-Family Development to be granted Temporary Certificates of Occupancy and the City the right to operate the off-site utility improvements along Lakewood Avenue. The Developers were responsible for all costs associated with maintenance and repairs until such time as the Lakewood Avenue extension was permanently transferred to the City. At this time, the City and the Developers would like to open the Lakewood Avenue extension to the public. However, there are several outstanding permits and Certificate of Completion items that must be addressed before the permit for offsite work can be closed and the Certificate of Completion issued. No Certificates of Occupancy can be issued until the Certificate of Completion is issued to the Developer. Although the Developers are working to resolve their issues, the City’s estimate for them to complete the necessary work is approximately 60 days. The attached modification to the Utility Use Agreement provides that the Developers will open the road and the City will maintain the roadway. This will not trigger an effective date change to the November 7, 2023, Maintenance, Materials, and Workmanship Escrow Agreement. This date will remain linked to the Certificate of Completion and will begin on the date that the Certificate is issued. The Developer also agrees to be responsible for all costs associated with the maintenance and repair of all Utility systems operated by the City of Ocoee until the Certificate of Completion is issued. This includes roadway and right-of-way restoration caused by a utility repair. The City further agrees that should the Southeast Retail Building (Retail B) complete all work necessary, in the next 60 days, to receive a Temporary Certificate of Occupancy, the City will agree to issue an interior alteration permit for Chipotle Restaurant. However, no other permits or Certificates of Occupancy will be issued until all work necessary for the off-site Certificate of Completion is completed and issued. City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org Issue: Should the Honorable Mayor and City Commissioners approve the First Amendment to the Utility Use Agreement, with the understanding the only Certificate of Occupancy that will be issued until the Certificate of Completion is granted is the Temporary Certificate of Occupancy for Retail Building B, relating to the interior alterations for Chipotle? Recommendations: Staff recommends the Honorable Mayor and City Commissioners approve the First Amendment to the Utility Use Agreement, and authorize the City Manager to sign off on the Chipotle interior alteration permit. Attachments: 1. First Amendment to Utility Use Agreement (Ocoee Village) Financial Impacts: N/A Type of Item: Staff Action Items AFTER RECORDING RETURN TO: City Clerk CITY OF OCOEE 1 North Bluford Avenue Ocoee, FL 34761 (407)656-2322 FIRST AMENDMENT TO UTILITY USE AGREEMENT (OCOEE VILLAGE CENTER) THIS FIRST AMENDMENT TO UTILITY USE AGREEMENT (this “Amendment”) is made this ____ day of _________________, 2024 by CITY OF OCOEE, a Florida municipal corporation, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (the “City”), OCOEE VILLAGE RESIDENTIAL LLC, a Delaware limited liability company (“NRP”), and KIMAYA OCOEE VILLAGE, LLC, a Florida limited liability company (“Park Square”, and together with NRP, the “Developers”). W I T N E S S E T H: WHEREAS, the City, NRP and Park Square entered into that certain Utility Use Agreement (Ocoee Village Center) dated October 17, 2023, and recorded as Document Number 20230623393 of the Official Records of Orange County, Florida (the “Agreement”). All capitalized terms in this Amendment will have the meanings ascribed to them in the Agreement; and WHEREAS, in the Agreement, the City agreed to operate and maintain the lift station and water and sewer infrastructure prior to completion of the Realigned North Lakewood Avenue Section; and WHEREAS, as of the date hereof, the Developer has not completed the requirements to obtain a Certificate of Completion and other requirements necessary to transfer ownership of the utilities to the City; and WHEREAS, the Realigned North Lakewood Avenue Section is complete and the City is ready to accept dedication of such road for use by the public; and WHEREAS, the City and Developer desire to amend the Agreement to provide that the City may accept the paving, grading, and drainage for the Realigned North Lakewood Avenue Section located south of Clarcona Ocoee Road prior to the City’s acceptance of the ownership of the utilities via a Bill of Sale and Maintenance Agreement as hereinafter set forth. NOW THEREFORE, the City and the Developers agree as follows: SECTION 1. Temporary Certificates of Occupancy, Use Authorizations. The last paragraph of the Agreement is hereby deleted and replaced with the following: City hereby agrees to operate and maintain the lift station and water and sewer infrastructure located within the Realigned North Lakewood Avenue Section prior to the Developer obtaining a Certificate of Completion and transferring ownership of the utilities to the City via a Bill of Sale and Maintenance Agreement. Further, Park Square and NRP agree to hold the City harmless for actions, matters and events that occur during the time prior to the Developer obtaining a Certificate of Completion. NRP and Park Square agree to provide the City with 24 hour / 7 Days a week access to the utilities under the Realigned North Lakewood Avenue Section and if the City has to make repairs to the Realigned North Lakewood Avenue Section, the City is not responsible to repair and/or replace the road section affected from repairs, maintenance or other actions relating to the utility lines. NRP and Park Square further agree to be responsible for all costs associated with the repair and replacement of utility lines, lift station and appurtenances, in the event any such work is required after the execution of this Utility Use Agreement until such time as the Developer has complied with all requirements of the City necessary to transfer the utilities to the City via a Bill of Sale and Maintenance Agreement. Developer acknowledges that the City may withhold any further Certificates of Completion, or Temporary or Final Certificates of Occupancy until the utilities have been properly transferred to the City. NRP and Park Square are jointly and severally responsible and liable for their obligations under this Utility Use Agreement and warrant they have the authority to, and hereby, bind the Consortium to this Agreement. IN WITNESS WHEREOF, the City has caused these presents to be signed as of the date and year first above written. ATTEST: By: Melanie Sibbitt, City Clerk (SEAL) CITY: CITY OF OCOEE, FLORIDA, a Florida municipal corporation By: Rusty Johnson, Mayor APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON _____________, 20__ UNDER AGENDA ITEM NO. ______ PARK SQUARE: Witnesses: Kimaya Ocoee Village, LLC, a Florida limited liability company By: Printed Name: Name: Title: Printed Name: STATE OF FLORIDA COUNTY OF ________ The foregoing instrument was acknowledged before me this ____ day of ____________, 2024, by ______________________, as ______________ of Kimaya Ocoee Village, LLC, a Foreign limited liability company, on behalf of the company. He/she appeared by (check one)  physical appearance or  online notarization, and (check one)  is personally known to me or  has produced ______________ as identification. Print Name: Notary Public My Commission Expires: Commission Number: NRP: Witnesses: Ocoee Village Residential LLC, c/o The NRP Group, a Foreign limited liability company By: Printed Name: Name: Title: Printed Name: STATE OF FLORIDA COUNTY OF ________ The foregoing instrument was acknowledged before me this ____ day of ____________, 2024, by ______________________, as ______________ of Ocoee Village Residential LLC, a Foreign limited liability company, on behalf of the company. He/she appeared by (check one)  physical appearance or  online notarization, and (check one)  is personally known to me or  has produced ______________ as identification. Print Name: Notary Public My Commission Expires: Commission Number: S:\AKA\CLIENTS\Ocoee, City of\Ocoee Village Center PUD O164-27501\Agreements\2024.10.10 - Utility Use Agreement (Ocoee Village) Clean AKA rev 10-13-2023.docx