HomeMy WebLinkAboutItem 05 Approval of Interim Agreement with Fortress Secured to proceed with the Ocoee Regional Law Enforcement Training Center
City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761
Phone: (407) 905-3100 ▪ www.ocoee.org
STAFF REPORT
Meeting Date: March 5, 2024
Item #: 5
Contact Name: Chris McKinstry Department Director: Vincent Ogburn
Contact Number: Ext. 3055 City Manager: Robert Frank
Subject: Approval of Interim Agreement with Fortress Secured to proceed with the Ocoee
Regional Law Enforcement Training Center. (Assistant Police Chief McKinstry)
Background Summary:
On November 15, 2022, the City Commission authorized staff to advertise and hire a professional firm (ZHA)
to evaluate the unsolicited proposal provided by Fortress Secured LLC for the Ocoee Regional Law
Enforcement Training Center. The evaluation determined the proposal does meet a public need pursuant to
state law, and it can provide an appropriately designed facility for a reasonable cost in a timely manner. On
July 18, 2023, the City Commission accepted the evaluation and approved the negotiation of a contract and
finance plan with Fortress Secured LLC for the design and construction of the Ocoee Regional Law
Enforcement Training Center. This next step of the process requires entering into an interim agreement with
Fortress Secured. Entering into an interim agreement does not obligate the City to enter into a
comprehensive agreement, and any comprehensive agreement for final construction would have to be
presented back to this Commission for approval. The interim agreement (attached) allows for the completion
of design and preparation of the comprehensive agreement.
Issue:
Should the Honorable Mayor and City Commissioners approve the Interim Agreement with Fortress Secured
to proceed with the Ocoee Regional Law Enforcement Training Center?
Recommendations:
Staff recommends the Honorable Mayor and City Commissioners approve the Interim Agreement with Fortress
Secured to proceed with the Ocoee Regional Law Enforcement Training Center.
Attachments:
1. Interim Agreement
Financial Impacts:
The financing plan for this project is scheduled for presentation to the Commission at the date of this reading.
Type of Item: Consent
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INTERIM AGREEMENT BETWEEN
THE CITY OF OCOEE AND FORTRESS SECURED, LLC
FOR THE DELIVERY OF A LAW ENFORCEMENT TRAINING FACILITY
THIS INTERIM AGREEMENT (“Agreement”) is made and entered into, as of the last
date of execution by the Parties (“Effective Date”), by and between the CITY OF OCOEE, a
Florida municipal corporation (“City”) and FORTRESS SECURED, LLC, a Florida limited
liability company, which is authorized to do business in the State of Florida (“Developer”) (each
a “Party” and collectively the “Parties”).
WHEREAS, pursuant to Section 255.065, Florida Statutes, the City received an
unsolicited proposal from Developer for the turn-key delivery of a new law enforcement training
facility (the “Project”) on real property owned by the City (the “City Property”); and,
WHEREAS, the City Commission deemed Developer’s proposal a qualifying project
under Section 255.065, Florida Statutes, deserving of further consideration as a potential public-
private partnership; and,
WHEREAS, the City published notice of its receipt of the proposal and solicited
competing offers for the Project; and,
WHEREAS, having received no competing offers, the City undertook negotiations with
Developer as authorized by Section 255.065(5)(c), Florida Statutes; and,
WHEREAS, the City has previously authorized Developer to access the City Property for
purposes of initial exploration; and
WHEREAS, the Parties now intend to enter into this interim Agreement in advance of the
negotiation and approval of a possible comprehensive agreement (the “Final Agreement”)
governing the Project, which will facilitate the development of design plans, construction budget,
pro-forma model and schedule assumptions to better inform and guide the development, design,
financing, permitting, construction, operation and maintenance of the Project.
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein and for other good and valuable consideration, the Parties agree as follows:
AGREEMENT
1. Pre-Development Generally.
The City will cooperate with Developer as it undertakes pre-development activities
described in Exhibit A hereto (“Pre-Development Activities”), in good faith and in a commercially
reasonable manner, with input and support to be provided by the City to develop a mutually
acceptable financial model for the Project. The principles that will guide the development of the
financial model for the Project are: (i) the total development budget does not exceed a total
principal amount of $10,710,534.00 (the “Projected Budget”) including an allowance for furniture,
fixtures and equipment in the amount of $500,000 (the “FF&E Allowance”), and (ii) the Project
adheres to the vision and all other material provisions as set forth in Developer’s proposal.
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2. Term.
The term of this Agreement (“Term”) shall commence upon the Effective Date and shall
terminate upon the earliest to occur of the following:
(a) the effective date of the Final Agreement with the City (the “Closing”);
(b) Developer and the City, working in good faith, fail to mutually agree on the
engineering and design plans for the Project; and
(c) Developer and the City fail to agree upon a fixed sum final cost for the Project (the
“Stipulated Sum”) at a price at or below the Projected Budget, or if over the Projected Budget at a
price acceptable to City in City’s sole discretion;
(d) Developer and the City, working in good faith, fail to mutually agree on the terms
and conditions of the Final Agreement;
(e) City determines, in its sole discretion, that options to finance the construction of
the Project are not available to City on terms and conditions reasonably acceptable to City;
(f) the effective date of the termination of this Agreement by mutual agreement of the
Parties.
(g) City determines, in its sole discretion, that the Additional Projects (as defined in
Section 5) cannot be obtained or cannot be obtained at a cost acceptable to City.
3. Scope of Pre-Development Activities.
(a) The Pre-Development Activities constitute the entire scope of the preliminary
activities Developer intends to conduct with respect to the Project.
(b) Pre-Development Activities. Developer has entered into a contractual agreement
with jl2 Architecture, LLC for Pre-Development Activities and related site due diligence, planning
and design work (the “Pre-Development Agreement”). At the request of City, Developer will
provide a copy of the Pre-Development Agreement to the City. The Pre-Development Activities
will include the coordination and commissioning of third-party architects and engineers contracted
by Developer to conduct the surveys, tests and to produce the reports or documents described in this
Agreement. All Pre-Development Activities, including all tests, shall be performed in a good and
workmanlike manner, good industry practices and all applicable laws, rules and regulations and the
requirements of governmental authorities. Developer shall provide upon request to the City copies
of all written reports, studies, analyses, surveys, designs, plans, drawings and other written, graphic
and three-dimensional work product prepared by or on behalf of Developer by third parties
(excluding Developer’s attorneys and accountants) as part of the Pre-Development Activities for
the Project (collectively, “Work Product”). The City acknowledges that Developer has expended
and will expend, in good faith, money to engage third parties in furtherance of the development of
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the Project and production of Work Product. Such expenditures anticipated to be expended, are
specifically described in that certain “Pre-Development Budget” attached hereto as Exhibit C.
Developer shall be permitted to expend funds in excess of any line item amount as long as the total
amount set forth in the Pre-Development Budget is not exceeded; provided, however, if Developer
desires to spend funds in excess of the total amount set forth in the Pre-Development Budget, any
amount in excess of $530,760.00 shall not be subject to reimbursement in accordance with the
terms of this Agreement by the City. Developer shall provide monthly updates to the City regarding
the actual costs expended to date, including such information as may be requested by the City.
(c) Contractors. Developer shall be responsible for the acts, failures to act, errors and
omissions of all contractors, subcontractors, vendors, consultants and agents engaged in
performance of Pre-Development Activities. Except as provided in this Agreement, this
Agreement shall not give rise to any contractual or other relationship between the City and any
such contractors, subcontractors, vendors, consultants and agents. The City disclaims and does not
undertake any obligation, duty or responsibility to pay, reimburse, compensate or otherwise be
responsible for payment of any fees, charges, rents, licenses, costs, expenses, reimbursements or
any other amount to any contractor, subcontractor, vendor, consultant and agent of Developer
(except as described in Section 4 below). Contracts, agreements, purchase orders and other
arrangements between Developer and such third parties for labor, licenses, services, equipment,
machinery, materials, supplies and other items utilized in the conduct of the Pre-Development
Activities shall be consistent with the terms and conditions of this Agreement. All contracts entered
into by Developer shall provide that any review or approval of the Work Product by the City or
Developer, or the incorporation of suggested revisions by the City, shall not constitute waiver,
release or acceptance of any error or omission in the Work Product, shall in no way waive or
release Developer or the contractors, subcontractors, vendors, consultants and agents from its
respective duty to completely perform its obligations under their contracts, the standard of care
applicable to the performance of their work, nor constitute a waiver of any claim or warranty. The
primary contracts for design and engineering services will be between Developer and jl2
Architecture, LLC (collectively, “Design Professionals”) engaged in performance of Pre-
Development Activities.
(d) Reports. Developer shall, on a monthly basis, provide a written report describing
the status, progress and results of the Pre-Development Activities. The information provided to
the City shall include an explanation of any significant variations from the scope, schedule,
sequence, or performance of the Pre-Development Activities and identify any potential or known
developments that may impact the City or the feasibility, cost or schedule for the design,
permitting, financing and construction of the Project or the Pre-Development Activities, and any
corrective or remedial actions implemented. The final plans and specifications for the Project are
subject to approval by the City.
4. Payment for Pre-Development Activities.
(a) Developer will be responsible for paying the third parties in accordance with the
agreements between Developer and each such third party in connection with the due diligence
surveys, tests and studies comprising the Pre-Development Activities. Pre-Development Activities
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shall be performed in accordance with the terms of this Agreement, including the Pre-Development
Budget set forth on Exhibit C.
(b) Developer will deliver 30% design plans and specifications to the City (the “30%
Plans”) for the City’s approval. Upon approval of the 30% Plans, Developer will provide an actual
budget for the Project (the “Project Budget”) based on a Stipulated Sum for delivery of the
completed Project to City. Upon the City’s acceptance of the Project Budget, the City and the
Developer will, in good faith, negotiate the terms and conditions of the Final Agreement. In the
event the Final Agreement is not complete and approved by the City within 120 calendar days
from the approval of the 30% Plans, the City and Developer will re-evaluate and revise the Project
Budget to reflect market changes, if any, in material, labor or other project costs.
(c) Upon the City’s approval of the 30% Plans and the Project Budget, the City agrees
to make monthly progress payments to Developer for the costs and expenses actually incurred by
Developer, commencing on July 18, 2023 (the date the City awarded the Project to Developer), up
to the total amount listed in the Pre-Development Budget for the Work Product, but in no event in
an amount in excess of $530,760.00. Progress payments shall be made by the City to Developer
within thirty (30) days after receipt of Developer’s properly submitted request for same
accompanied by substantiation of all costs, expenses, fees, charges and other amounts paid for the
Pre-Development Activities and Work Product. Upon receipt of reimbursement by the City,
Developer shall pay all costs and expenses in the Pre-Development Budget directly to third party
consultants not affiliated with Developer, or any of its officers, directors, members or shareholders.
Notwithstanding anything to the contrary, the City will have no obligation to enter into the Final
Agreement unless the City has obtained acceptable financing or otherwise procured funds
necessary to pay for the Project.
(d) In the event this Agreement is terminated by the City pursuant to Section 2.(b) or
Section 11(a), and providing such termination occurs prior to the City’s approval of the 30% Plans
and Project Budget, as further described in Section 4, the City shall not be obligated to pay
Developer for any costs and expenses incurred with respect to Pre-Development Activities. In the
event this Agreement is terminated for any other reason, the City shall pay Developer the costs
and expenses actually incurred by Developer through the date of termination, up to the total amount
listed in the Pre-Development Budget, within thirty (30) days after receipt of Developer’s properly
submitted request for same accompanied by substantiation of all costs, expenses, fees, charges and
other amounts paid for the Pre-Development Activities and Work Product.
5. The Additional Projects.
The City and Developer acknowledge that in order to construct the Project, the nearest
sanitary sewer line connection will need to be extended approximately 2,600 feet (the “Sewer Line
Extension”), and the nearest potable water line connection will need to be extended approximately
700 feet (the “Water Line Extension” and together with the Sewer Line Extension, collectively,
the “Utility Extensions”). In addition, the City desires to include the design and construction of
certain structural elements within the City Property that will permit the City to construct additional
improvements and locate equipment needed to support a fire tower on the City Property (the “Fire
Tower”). The City and Developer understand that potential delays in initiating and completing
either the Utility Extensions or the Fire Tower may adversely impact Developer’s ability to attain
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substantial completion of the Project or reach other milestones within the time frames to be
established in the Final Agreement. As such, the City has requested Developer to undertake the
construction of the Utility Extensions (the “Utility Project”), as well as the Fire Tower (the “Fire
Tower Project” and together with the Utility Project, the “Additional Projects”). The City has
committed to undertake at its own cost the design of the Utility Project, including the survey,
design, permitting, engineering and any other plans or actions necessary to allow for the Developer
to construct said Utility Project (the “design”). The City shall pay the full cost for this design
separate and apart from this Agreement. The City acknowledges that the failure to have a
completed design and all necessary approvals to begin construction by this date will delay
completion of the Utility Project which may also delay completion of the Project. Notwithstanding
anything contained herein to the contrary, beginning on the Effective Date, any costs incurred by
Developer in connection with the Additional Projects shall be reimbursed by the City on a “Cost
Plus 6%” basis, and shall include Developer’s direct and indirect costs, including overhead. The
City agrees to make monthly progress payments to Developer for the costs and expenses actually
incurred by Developer commencing from the Effective Date, in accordance with Section 4;
providing, however, any payments due Developer shall not be contingent upon City’s approval of
the 30% Plans, and in the event of termination for any reason, City agrees to pay Developer costs
and expenses incurred by Developer for the Additional Projects through the date of termination.
To the extent reasonably possible, Developer will obtain approval of the City prior to incurring
costs and City will have the right to approval all proposals. City retains the right to cease
Developer’s work on the Additional Projects at any time and to thereafter assume such duties.
Notwithstanding any other provision in this Agreement, the City agrees that if the Design and
Permitting of the Utility Extensions are not completed within _180____ days of the Effective Date
of this Agreement, and if construction of the Utility Extensions is not completed within _365____
days of the Effective Date of this Agreement, the work timeline and budget for the Project will be
adversely affected the Developer shall be entitled to an equitable adjustment to the Budget.
6. Shared Access Easement Agreement.
The Developer’s proposal for the Project contemplates the construction of an access road
leading to the Project from North Fullers Cross Road in the area generally depicted on Exhibit B,
hereto (the “Proposed Entrance Road”). Preliminary due diligence conducted by the City and
Developer indicates the City Property is encumbered by a Shared Access Easement Agreement,
dated June 15, 2004, and recorded in Official Records Book 07504, Pages 3339 - 3350, in the
Public Records of Orange County, Florida (the “Shared Access Agreement”). The Shared Access
Agreement imposes certain rights and obligations with respect to the construction of a joint
entrance road to serve both the City Property and adjacent parcel. In the event the City determines
that the Proposed Entrance Road must be relocated in order to comply with the terms of the Shared
Access Agreement, the payment of any costs relating to such relocation, including but not limited
to, survey, design, permitting, engineering and construction, shall be the responsibility of the City,
and shall not be included in the Projected Budget. Unless otherwise agreed to by the parties, the
terms of the Final Agreement shall include equitable adjustments which must be made to the
Stipulated Sum or to the substantial completion date and other milestones, to the extent they are
impacted by the City’s evaluation and implementation of its obligations under the Shared Access
Agreement.
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7. Certification/Ownership of Work Product. Developer will ensure that all completed
Work Product is certified and may be relied upon by the City. All Work Product created by or
through Developer shall (as between the Parties) be the exclusive property of Developer unless
and until the City has paid for such Work Product. In such event, the City acknowledges that the
Work Product is not intended or represented to be suitable for use on the Project unless completed
by the Design Professionals. Any use or reuse, or any modification of the Work Project by the
City, without written authorization, completion or adaption by the Design Professionals will be at
the City’s sole risk and without liability or legal exposure to the Design Professionals, or to their
respective officers, directors, members, partners, agents, employees, and consultants.
8. Developer-led Approach.
Developer is fully responsible for the selection, coordination, and contractual engagement
of the Design Professionals, general contractors, vendors, suppliers and other professional
consultants involved in the conduct of the Pre-Development Activities, and making all
arrangements with utility, communication, cable and information technology companies and the
City with respect to the location of subsurface utility, information technology, communication,
and cable installations and other assets, property, equipment, infrastructure and systems necessary
to serve the Project.
9. Single Point-of-Contact; Design Plans; Designated Representatives of Each Party.
(a) Coordination. The Parties agree that in order to facilitate efficient communication
and information exchange between the Parties relating to the Pre-Development Activities,
Developer will be the single point-of-contact and responsible to the City but will actively involve
and make available other members of the Developer’s team to participate in regularly scheduled
planning and progress meetings with City officials, to be held at least monthly through the term of
this Agreement. Developer’s team will present plans, specifications, schedule and budget reports
or updates to the City, apprise the City of progress, and solicit the City’s input, feedback, and when
appropriate, decisions and/or approvals on material matters pertaining to the conduct of the Pre-
Development Activities.
(b) Design Plans and Specifications. Except in the event of a termination, Developer
shall provide to the City design plans and specifications that are 30%, 60% and 90% complete.
The 30% Plans shall serve as the basis for the design of the Project and shall contain at a minimum,
the major design elements, the proposed Project Budget, and project timeline. Any change
requested by the City to the design plans following approval of the 30% Plans that increases the
Project Budget for the Project shall be the responsibility of the City. Except as otherwise provided
in this Agreement, any other change to the 30% Plans that increases the Project Budget for the
Project shall be the responsibility of Developer.
(c) Designated Representatives. For clarity of communication and accountability, (i)
[_____] will initially serve as the Designated Representative and point-of-contact for the City and
(ii) while others on Developer’s team will be actively involved in the process, all official
communication about material issues related to the Pre-Development Activities shall flow through
Developer’s Designated Representative Matt Everett. Each Designated Representative will be
responsible for the further dissemination of information to their respective interested persons.
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10. Compliance.
(a) Licenses. Developer agrees to use and require each of its development team
members and other contractors, subcontractors, vendors, consultants and agents to use, only
personnel who are qualified and properly trained and who possess any license, permit, registration,
certificate or other approval required by any applicable law or any governmental authority to
enable such personnel to perform their work, services and activities involving any portion of the
Pre-Development Activities.
(b) Laws. Developer specifically agrees that in the performance of the Pre-
Development Activities, it shall at all times comply with and cause each of its development team
members and other contractors, subcontractors, vendors, consultants and agents to fully comply
with all applicable laws, including environmental laws, permits, requirements of governmental
authorities, and good industry practice.
11. Default.
(a) If Developer shall materially breach, violate or fail or refuse to timely perform in
accordance with the requirements hereof any of the terms, conditions, covenants or agreements
made by Developer herein (a “Developer Default”), the City, upon obtaining notice or knowledge
thereof, shall give prompt written notice of such Developer Default to Developer, but in any event
within ten (10) business days. If, within ten (10) business days after receipt of such notice,
Developer has not promptly commenced or proposed for the City consent its recommended course
of action to cure such default (and thereafter diligently pursues such cure to completion within the
period for the performance and completion of the Pre-Development Activities hereunder), the
rights and remedies of the City shall include the right to terminate this Agreement by giving written
notice to Developer, whereupon this Agreement shall automatically cease and terminate, subject,
however, to the rights and remedies of the City, to recover damages sustained by the City and other
available remedies, and the survival of Developer’s indemnity and insurance obligations
hereunder.
(b) If the City shall materially breach, violate or fail or refuse to timely perform in
accordance with the requirements hereof any of the terms, conditions, covenants or agreements
made by the City herein (a “City Default”), Developer, upon obtaining notice or knowledge
thereof, shall give prompt written notice of such City Default to the City, but in any event within
ten (10) business days. If , within ten (10) business days after receipt of such notice, the City has
not promptly commenced or proposed for Developer consent its recommended course of action to
cure such default (and thereafter diligently pursues such cure to completion within the period for
the performance and completion of the Pre-Development Activities hereunder), the rights and
remedies of Developer shall include the right to terminate this Agreement by giving written notice
to the City, whereupon this Agreement shall automatically cease and terminate. In such event, the
City shall pay Developer the costs and expenses actually incurred by Developer through the date
of termination, in accordance with Section 4(c) herein.
12. Indemnity. Developer hereby agrees to indemnify, protect, defend and hold
harmless the City, its current and future city commissioners, officers, employees, agents,
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representatives, successors and assigns (the “City Indemnitees”) from and against any and all
claims, actions, suits, proceedings, investigations, audits, losses, liabilities, penalties, fines,
sanctions, damages, demands, causes of action, costs and expenses including, but not limited to,
all reasonable consulting, engineering, reasonable attorneys (in-house and outside counsel) or
other professional fees including disbursements (collectively, “Losses”), which City Indemnitees,
or any of them, may incur or suffer by reason of the following arising out of relating to or resulting
from the following actions in the Developer’s conduct of the Pre-Development Activities or the
activities of Developer, Developer’s team members, contractors or subcontractors on the Project
site in connection with the Pre-Development Activities or Developer’s breach of this Agreement:
(i) bodily injury or death of any natural person; (ii) damage to property of any person or entity;
(iii) violations of applicable laws, permits, or requirements of governmental authorities; and (iv)
misappropriation, infringement or misuse of intellectual property or industrial property rights of a
third party; except to the extent any such Losses were caused primarily by the negligent or willful
misconduct or omissions of the City Indemnitees, or any of them. Developer’s indemnity
obligation hereunder shall not be limited in any way by any limitation on the amount or type of
damages, compensation, penalty or benefits payable by or for Developer under any statutory
program or scheme, including without limitation, any workers compensation, disability benefit or
other employee benefit acts.
13. Notices. Any notice, demand, request, consent, approval or other communication
authorized or required hereunder (excluding day-to-day communication in the administration of
this Agreement in the ordinary course) shall be in writing, shall be delivered personally or by
national recognized overnight courier and shall be deemed to have been duly given and received
upon receipt if delivery is made on a business day during regular business hours, or otherwise on
the next business day. Confirmation of delivery of notice by an overnight courier shall be
conclusive evidence of receipt of such notice. Notices to a Party shall be addressed to such Party
at the addresses provided below, or such other addresses as a Party may from time to time designate
by written notice to the other Party:
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If to City Robert D. Frank
City Manager
1 North Bluford Avenue
Ocoee, Florida 34761
Email rfrank@ocoee.org
With a copy to: Richard S. Geller
City Attorney
Fishback Dominick
1947 Lee Road
Winter Park, Florida 32789
Email rgeller@fishbacklaw.com
If to Developer Fortress Secured, LLC
3603 Beachwood Court
Jacksonville, Florida 32224
Attn: Matt Everett
Email matt@fortresssecured.com
With a copy to: Nelson Mullins
390 N. Orange Avenue, Ste. 1400
Orlando, FL 32801
Attn: Kate Stangle
Email kate.stangle@nelsonmullims.com
14. Insurance Coverage. Developer shall require all Design Professionals performing
Pre-Development Activities pursuant to this Agreement to obtain, carry and keep in full force,
professional liability insurance covering liability arising out of error, omission, or negligent acts
in the performance, or lack thereof, of professional services contemplated under this Agreement
in an amount of not less than $1,000,000 per claim / $2,000,000 aggregate; provided Developer’s
subcontractors who are providing professional design services shall be required to maintain such
insurance in an amount of not less than $1,000,000 per claim/$2,000,000 aggregate. If the City
requires coverage limits in excess of the amounts stated herein, Developer shall require same,
subject to the City’s reimbursement for the additional premium costs, if any.
15. On or before the Effective Date, and thereafter during the term hereof, Developer
shall provide the City with original, current Certificates of Insurance, and renewal certificates of
insurance thereafter, executed by a duly authorized representative of each insurer, or by the
insurance agent or broker authorized to do so, as evidence of all insurance policies. Said
Certificates of Insurance shall name the Ocoee City Commission as an Additional Insured and
Certificate Holder. No insurance policy required hereunder may be canceled, materially revised,
or subject to non-renewal without at least thirty (30) calendar days prior written notice being given
to the City or, in the event of cancellation for non-payment of premium, ten (10) days prior written
notice. Developer shall provide the City with renewal certificates of insurance or binders not less
than five (5) business days prior to such expiration. Insurance shall be maintained without lapse in
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coverage during the term of this Agreement. The City shall also be given certified copies of
Developer’s policies of insurance, upon request.
16. Entire Agreement. This Agreement, read in conjunction with the Site Access
Agreement, constitutes the entire agreement between the Parties, and may be amended or modified
only in writing, executed by each Party. A waiver of enforcement of any obligation or waiver of
covenant or the exercise of any right or remedy shall be in writing and signed by the Party to be
bound thereby in order to be effective. The provisions of this Agreement are severable and the
invalidity of one or more of the other provisions hereof shall not affect the validity or enforceability
of any of the provisions hereof. This Agreement is the product of negotiation and neither Party
shall be burdened by any presumption on the basis of its involvement in the drafting and
preparation of this Agreement.
17. Due Authorization; Binding Agreement. The Parties represent and warrant that the
signatories below are duly authorized by the Party each represents to enter into this Agreement,
and by their signatures do bind the Parties to the terms of this Agreement.
18. Controlling Law. This Agreement is governed by and will be interpreted and
enforced under the laws of the State of Florida. Nothing contained herein shall be construed as a
waiver of any immunity or limitation of liability City may be entitled to under the doctrine of
sovereign immunity or Section 768.28, Florida Statutes.
19. Consequential Damages. In no event shall either Party have any liability to the other
or its affiliates, contractors or subcontractors on account of any consequential, incidental, indirect,
special, punitive or exemplary damages, whether in contract, tort (including negligence and strict
liability) or under any other legal or equitable principles whatsoever, or for any loss of profits,
opportunity, reputation, financing or revenue.
20. Venue; Waiver of Jury Trial. Any dispute between the Parties arising out of or
relating to this Agreement that cannot be resolved between the Designated Representative of the
Parties shall be referred to the City Attorney’s Office and a duly appointed officer of Developer
for the duration of the Term. If the City and Developer cannot reach an agreement resolving the
dispute within a reasonable period of time not to exceed thirty (30) days after referral of the dispute
to officers of the Parties, the City or Developer shall have the right to schedule mediation before a
mediator certified by the Florida Supreme Court. Only after an impasse occurs in mediation may
either party pursue litigation. In no event shall the existence of litigation of any controversy or the
settlement thereof in and of itself delay the performance of obligations under this Agreement. IN
THE EVENT LITIGATION IS PROSECUTED BY ANY PARTY HERETO, CITY AND
DEVELOPER AGREE TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW TO WAIVE
TRIAL BY JURY. The sole and exclusive venue for resolution of any dispute, claim or
controversy arising out of or relating to this Agreement shall be the state courts in Orange County,
Florida.
21. Assignment. Developer shall not permit this Agreement or any of its obligations or
rights hereunder to be delegated or assigned voluntarily, involuntarily or by operation of law,
without the express prior written authorization of the City at its sole and absolute discretion;
provided, however, that Developer shall be permitted to assign this agreement in whole to an
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affiliate of Developer, so long as Developer is in control of such affiliate and such assignment does
not relieve Developer of its financial obligations under this Agreement. No such written
authorization, however, shall be construed as discharging or releasing Developer from the
performance of the Pre-Development Activities and the fulfillment of other obligations under this
Agreement. This Agreement shall inure to the benefit of and bind the Parties and their permitted
successors and permitted assigns.
22. Public Records. Any document submitted to the City may be a “public record” as
defined by Florida law. Any public record is subject to inspection and copying unless exempted
under Chapter 119, Florida Statutes, or as otherwise provided by law.
In accordance with §119.0701, Florida Statutes, Developer, when acting on behalf of the
City, as provided under §119.011(2), Florida Statues, shall keep and maintain public records as
required by law and retain them as provided by the General Record Schedule established by the
Department of State. Upon request from the City’s custodian of public records, Developer must
provide the City with a copy of the requested records or allow the records to be inspected or copied
within a reasonable time unless exempted by law. Additionally, Developer shall provide the public
records at a cost that does not exceed the cost provided by law.
Developer shall ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements, including materials exempt from disclosure pursuant to
Section 119.071(3)(b)(1), Florida Statutes, are not disclosed except as authorized by law for the
duration of this Agreement and following completion of this Agreement if Developer does not
transfer the records to the City. Upon the completion of the Agreement, Developer shall transfer,
at no cost, to the City all public records in the possession of Developer and shall destroy any
duplicate public records that are exempt or confidential and exempt from public records disclosure
requirements. All records stored electronically must be provided to the City, upon request from
the City’s custodian of public records, in a format that is compatible with the information
technology system of the City.
IF DEVELOPER HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO DEVELOPER’S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT,
CONTACT THE CUSTODIAN OF PUBLIC RECORDS, [_____], AT [( ) - ], 1
NORTH BLUFORD AVENUE, SUITE [_____] OCOEE, FLORIDA, 34761,
EMAIL: [_____].
23. Counterparts. This Agreement may be executed in one or more counterparts, any
one of which need not contain the signatures of more than one Party, but all of which when taken
together shall constitute one and the same instrument. The Parties agree that an electronic version
of this Agreement shall have the same legal effect and enforceability as a paper version. The Parties
further agree that this Agreement, regardless of whether in electronic or paper form, may be
executed by use of electronic signatures. Electronic signatures shall have the same legal effect and
enforceability as manually written signatures. The City shall determine the means and methods by
which electronic signatures may be used to execute this Agreement and shall provide the
Developer with instructions on how to use said method. Delivery of this Agreement or any other
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document contemplated hereby bearing a manually written or electronic signature by facsimile
transmission (whether directly from one facsimile device to another by means of a dial-up
connection or whether mediated by the worldwide web), by electronic mail in “portable document
format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic
and pictorial appearance of a document, will have the same effect as physical delivery of the paper
document bearing an original or electronic signature.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives and agree to be bound hereby as of the Effective Date.
CITY OF OCOEE, FLORIDA, a municipal
corporation
By: _________________________
Date: ______________________
FORTRESS SECURED, LLC
By:
Date:_____________________________
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Exhibit A
Scope of Pre-Development Activities
The following are the site-specific environmental and engineering due diligence
evaluations and architectural design and engineering activities to be performed by Developer in
accordance with the terms of this Agreement.
1. Environmental Site Assessment
2. Geotechnical Report
3. Survey
4. Civil Engineering
6. Design Architect
7. Schematic ASMEP
8. Design Development ASMEP
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Exhibit B
Proposed Entrance Road Location
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Exhibit C
Pre-Development Activity Anticipated Budget