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HomeMy WebLinkAboutItem #08B Citrus Oaks PUD Rezoning/Land Use Plan AGENDA ITEM STAFF REPORT Meeting Date: August 5,2008 Item # E6B Contact Name: Contact Number: Bobby Howell, MPA 407-905-3100, Ext. 1044 Reviewed By: Department Director: City Manager: ~~ v - -- ---.... Subject: Citrus Oaks Center PUD Rezoning I land Use Plan Project # RZ-GS-G4-G4 Commission District # 2 - Scott Anderson ISSUE: Should the Honorable Mayor and City Commissioners approve an Ordinance rezoning approximately 2.13 acres of property known as the Citrus Oaks Center from Professional Offices & Services (P-S) to PUD-Commercial? BACKGROUND SUMMARY: The Citrus Oaks Center is located on the southeast corner of the intersection of SR 50 and Citrus Oaks Avenue. The subject property is approximately 2.13 acres in size and is the site of an existing building that was permitted by the City in 1998 that is currently occupied by professional and medical offices. The table below references the future land uses, zoning classifications and existing land uses of the surrounding parcels: Direction North Future Land Use Commercial Zonin Classification Community Commercial C-2 PUD-Commercial Existin Land Use Retail outparcels of the West Oaks Mall East Commercial, Conservation/Flood lains Low Density Residential Orange County Residential District Professional Offices & Services P-S Retail Shopping Center, Wetland/Conservation area Single-Family homes South West Professional Offices & Services Medical Office building DISCUSSION: The applicant is requesting to rezone the subject property from Professional Offices & Services (P-S) to PUD- Commercial. Currently, the main tenant is a medical clinic that has indicated they will not renew their lease, which expires on August 31, 2008. The applicant has conveyed to the City that rezoning the property to PUD- Commercial will allow greater latitude in leasing portions of the building to a broader range of tenants than could occupy the building under the current zoning of P-S. Rezoning the property to PUD-Commercial is not anticipated to generate additional traffic impacts beyond those of the existing commercial shopping center to the east of the subject property. The applicant has agreed to place use limitations on the property in an effort to limit traffic impacts created by the site and to be consistent with the uses in the commercial shopping center to the east. The list of permitted uses is on the Land Use Plan, and is contained within the Development Agreement. The subject property is accessed via a right turn-lane that leads into a shared access with the property to the east along SR 50, and has a secondary access point along Citrus Oaks Avenue, which is a local collector street. The property is located on SR 50, which is the main arterial road and commercial corridor in the City of Ocoee. The subject property is located across SR 50 from the West Oaks Mall, and from "big-box" retailers ranging from Best Buy, PetSmart, Michael's Arts & Crafts, Toys R' Us, and Borders Books & Music. The existing shopping center that is located to the east of the subject property contains a multitude of commercial uses that range from a restaurant to an optometrist office. Based on the above analysis, it is anticipated the proposed rezoning from Professional Offices & Services (P-S) to PUD-Commercial is a logical extension of the commercial zoning designations that are found adjacent to north and east of the site, and will not pose additional impacts on the surrounding roadway network. DEVELOPMENT REVIEW COMMITTEE RECOMMENDATION: The Development Review Committee (DRC) met on June 25, 2008 and reviewed the applicant's request. The applicant was notified that all concerns in regards to the review of the project had been satisfied. The Planning Department requested that check-cashing businesses should be added to the list of prohibited uses on the Land Use Plan and in the Development Agreement. The Police Department requested day-labor establishments be added to the list of prohibited uses on the Land Use Plan and in the Development Agreement. No additional concerns were addressed, and the DRC voted unanimously to recommend approval of the rezoning of the Citrus Oaks Center from a designation of Professional Offices & Services (P-S) to PUD including the Land Use Plan subject to the incorporation of the above referenced prohibited uses on the Land Use Plan and in the Development Agreement. PLANNING & ZONING COMMISSION RECOMMENDATION: The Planning & Zoning Commission met on July 8, 2008 to consider the proposed rezoning of the Citrus Oaks Center from P-S to PUD. Following the deliberations, the members of the Planning & Zoning Commission voted unanimously to rezone the Citrus Oaks Center from a designation of P-S (Professional Offices & Services) to PUD-Commercial including the Land Use Plan subject to the incorporation of the prohibited uses recommended by the DRC on the Land Use Plan and in the Development Agreement. STAFF RECOMMENDATION: Staff recommends that the Honorable Mayor and City Commissioners adopt an Ordinance rezoning the Citrus Oaks Center from a designation of Professional Offices & Services (P-S) to PUD-Commercial including the Land Use Plan, subject to the execution of the attached Development Agreement. ATTACHMENTS: Location Map Existing Future Land Use Map Proposed Future Land Use Map Existing Zoning Map Proposed Zoning Map Ordinance Development Agreement Citrus Oaks Center PUD Land Use Plan FINANCIAL IMPACT: None. 2 TYPE OF ITEM: (please mark with an "x') Public Hearing ~ Ordinance First Reading _ Ordinance Second Reading Resolution _ Commission Approval Discussion & Direction For Clerk's DeDt Use: _ Consent Agenda _ Public Hearing _ Regular Agenda _ Original Document/Contract Attached for Execution by City Clerk _ Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) N/A X N/A N/A 3 Citrus Oaks Center Location Map miL ~ r- I ~ ~ Ie-- ~ Hl \\= ~ '= (!ff ---- If-- '-- ) \ c Ll) ro 5 .r. \ ~ (> \ -go ~ 0 ~ () ro -, I / - . r l I .. 1IC::l1 -- 7 ~ LAKE LOTTA ---" \ IJI p~ It == - 1'1A - II ~ ~ 1 I~' ro 0 -'\\\\ ~ en 1\ \ \\ ~~[j ~ .. .... ~ l/ ( ~ ne ~ ~ () e~~ ~ j,. l.J <:J I 1 I (0);; I 1m' I Q - Ocoee Commun~y Development Department 1 inch equals 770.448549 feet Printed: June 2008 C Subject Property EEBI Unincorporated Territory and Other Municipalties Zoning Classification: General Agricultural (A-1) _ Suburban (A-2) Single-Family Dwelling (R-1AAA) Single-Family Dwelling (R-1AA) Single-Family Dwelling (R-1A) Cl Single-Family Dwelling (R-1) _ One- & Two-Family Dwelling (R-2) _ Multiple-Family Dwelling (R-3) _ Mobile Home Subdivision (RT-1) _ Professional Offices & Services (P-S) _ Neighborhood Shopping (C-1) _ Community Commercial (C-2) _ General Commercial (C-3) _Restricted Manufacturing & Warehousing (1-1) _ General Industrial (1-2) ~ Commercial (PUD) m Low Density (PUD) .. Medium Density (PUD) III High Density (PUD) _ Public Use (PUD) /' // Unclassified Lakes and Water Bodies Citrus Oaks Center Existing Future Land Use Map LAKE LOTTA iiEiSI CONS LAKE LOTTA Q cent'" 01 Good 1./ ~ Ocoee Community Development Department 1 inch equals 1,000 leet 32~62.5 0 325 650 975 Feet Printed: June 2008 C Subject Property Inn Unincorporated Territory ~ and Other Municipalties _ Low Density Residential _ Medium Density Residential _ High Density Residential _ Professional Offices and Services _ Commercial _ Light Industrial _ Heavy Industrial _ Conservation/Floodplains _ Recreation and Open Space _ Public Facilitiesllnstitutional Lakes and Water Bodies Citrus Oaks Center Proposed Future Land Use Map Q ~ Ocoee Community Development Department 1 inch equals 770.446549 feet 260130 0 260 520 760 Feet Printed: June 2008 C Subject Property EEEB Unincorporated Territory and Other Municipalties Zoning Classification: General Agricultural (A-1) _ Suburban (A-2) Single-Family Dwelling (R-1AAA) Single-Family Dwelling (R-1AA) Single-Family Dwelling (R-1A) ~ Single-Family Dwelling (R-1) _ One- & Two-Family Dwelling (R-2) _ Multiple-Family Dwelling (R-3) _ Mobile Home Subdivision (RT-1) _ Professional Offices & Services (P-S) _ Neighborhood Shopping (C-1) _ Community Commercial (C-2) _ General Commercial (C-3) _Restricted Manufacturing & Warehousing (1-1) _ General Industrial (1-2) ~ Commercial (PUD) = Low Density (PUD) III Medium Density (PUD) rm High Density (PUD) _ Public Use (PUD) /' // Unclassified Lakes and Water Bodies ~pr ~ ~11 I I ~/r::;::;: III III -..u.... II-\-. Citrus Oaks Center Existing Zoning Map ';' '7-.: 1/ - } 1,1":-- / \ ~\, t ",\\ , ~ ~ ~:,:~\ III I II mimam IIIIi ~ c_ R-25 -- 'T7t1=- Sill iiiiEm II I II II 11111 II I II ,'../ '1\ II 11111 1111 I I ~_Kf" -l<-jl ~ ~ 1111 laD "" II I I S _--1=l1 II II I I V. ,.ft'fl :.J II II Il;j- /,ll--ll--l--ll ,I ~n 1.lJ J I II TIlr LAKE LOTTA \ I 11f+ LAKE LOTTA II ~ ,1/11 = p I ) :1 ~ Q unt.. of Good Lt ~ Ocoee Commun~y Development Department 1 inch equals 1,000 feet 340170 0 340 680 1,020 Feet Printed: June 2008 C Subject Property I""I"rn Unincorporated Territory ~ and Other Municipalties Zoning Classification: General Agricultural (A-1) _ Suburban (A-2) Single-Family Dwelling (R-1AAA) Single-Family Dwelling (R-1AA) Single-Family Dwelling (R-1A) [' : Single-Family Dwelling (R-1) Ell One- & Two-Family Dwelling (R-2) _ Multiple-Family Dwelling (R-3) _ Mobile Home Subdivision (RT-1) _ Professional Offices & Services (P-S) _ Neighborhood Shopping (C-1) _ Community Commercial (C-2) _ General Commercial (C-3) _Restricted Manufacturing & Warehousing (1-1) _ General Industrial (1-2) ~ Commercial (PUD) ma Low Density (PUD) I!!I Medium Density (PUD) &D High Density (PUD) _ Public Use (PUD) / // Unclassified Lakes and Water Bodies Citrus Oaks Center Proposed Zoning Map Old Winter ORDINANCE NO. (Rezoning Ordinance for Citrus Oaks Center Parcel) TAX PARCEL ID #: 21-22-28-6328-00-024. CASE NO. RZ-08-04-04: CITRUS OAKS CENTER AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA, CHANGING THE ZONING CLASSIFICATION FROM OCOEE P-S, "PROFESSIONAL OFFICES AND SERVICES" TO OCOEE PUD, "PLANNED UNIT DEVELOPMENT," ON CERTAIN REAL PROPERTY CONTAINING APPROXIMA TEL Y 2.13 ACRES LOCATED SOUTH OF AND ADJACENT TO COLONIAL DRIVE (S.R. 50) AND EAST OF AND ADJACENT TO CITRUS OAKS DRIVE, PURSUANT TO THE APPLICATION SUBMITTED BY THE PROPERTY OWNER; FINDING SUCH ZONING TO BE CONSISTENT WITH THE OCOEE COMPREHENSIVE PLAN; PROVIDING FOR AND AUTHORIZING THE REVISION OF THE OFFICIAL CITY ZONING MAP; REPEALING INCONSISTENT ORDINANCES; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the owner or owners (the "Applicant") of certain real property located within the corporate limits of the City of Ocoee, Florida, as hereinafter described, have submitted an application to the City Commission of the City of Ocoee, Florida (the "Ocoee City Commission") to rezone said real property (the "Rezoning"); and WHEREAS, the Applicant seeks to rezone certain real property containing approximately 2.13 acres, more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof, from Ocoee P-S, "Professional Offices and Services," to Ocoee PUD, "Planned Unit Development;" and WHEREAS, pursuant to Section 5-9(B) of Chapter 180 of the Code of Ordinances of the City of Ocoee, Florida (the "Ocoee City Code"), the Director of Planning has reviewed said Rezoning application and determined that the Rezoning requested by the Applicant is consistent with the 1991 City of Ocoee Comprehensive Plan as set forth in Ordinance #91-28, adopted September 18, 1991, as amended (the "Ocoee Comprehensive Plan"); and WHEREAS, said Rezoning application was scheduled for study and recommendation by the Planning and Zoning Commission of the City of Ocoee, Florida (the "Planning and Zoning Commission"); and WHEREAS, on July 8, 2008 the Planning and Zoning Commission held a public hearing and reviewed said Rezoning application for consistency with the Ocoee Comprehensive Plan and determined that the Rezoning requested by the Applicant is consistent with the Ocoee Comprehensive Plan, and is in the best interest of the City and recommended to the Ocoee City ORLA_1060851.2 Commission that the zoning classification of said real property be rezoned as requested by the Applicant, and that the Ocoee City Commission finds that the Rezoning requested by the Applicant is consistent with the Ocoee Comprehensive Plan; and WHEREAS, on , 2008 the Ocoee City Commission held a de novo advertised public hearing with respect to the proposed Rezoning of said real property and determined that the Rezoning is consistent with the Ocoee Comprehensive Plan; and WHEREAS, this Ordinance has been considered by the Ocoee City Commission in accordance with the procedures set forth in Section 166.041 (3)(a), Florida Statutes. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. AUTHORITY. The Ocoee City Commission has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapters 163 and 166, Florida Statutes. SECTION 2. REZONING. The zoning classification, as defined in the Ocoee City Code, of the Property described in Exhibit "A" containing approximately 2.13 acres located within the corporate limits of the City of Ocoee, Florida, is hereby changed from Ocoee P-S, "Professional Offices and Services," to Ocoee PUD, "Planned Unit Development." A map of said land herein described which clearly shows the area of the Rezoning is attached hereto as Exhibit "B" and by this reference is made a part hereof. SECTION 3. COMPREHENSIVE PLAN. The City Commission hereby finds the Rezoning of the lands described in this Ordinance to be consistent with the Ocoee Comprehensive Plan. SECTION 4. ZONING MAP. The City Clerk is hereby authorized and directed to revise the Official Zoning Map of the City of Ocoee in order to incorporate the Rezoning enacted by this Ordinance and the Mayor and City Clerk are hereby authorized to execute said revised Official Zoning Map in accordance with the provisions of Section 5-1(G) of Article V of Chapter 180 of the Ocoee City Code. SECTION 5. CONFLICTING ORDINANCES. All ordinances or parts of ordinances in conflict herewith are hereby repealed and rescinded. SECTION 6. SEVERABILITY. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance 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 hereto. SECTION 7. EFFECTIVE DATE. This Ordinance shall take effect immediately upon passage and adoption. 2 ORLA_1060851.2 PASSED AND ADOPTED this _ day of ATTEST: Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 2008. FOLEY & LARDNER LLP By: City Attorney ORLA_1060851.2 ,2008. APPROVED: CITY OF OCOEE, FLORIDA S. Scott Vandergrift, Mayor ADVERTISED , 2008 READ FIRST TIME , 2008. READ SECOND TIME AND ADOPTED ,2008. Under Agenda Item No. 3 EXHIBIT "A" (The "Propertv") Legal Description THAT PART OF THE FOLLOWING DESCRIBED PROPEf~TY LYING EAST OF CITf~US OAKS AVENUE AS DESCRIBED IN OFFICIAL RECORDS BOOK 3517, PAGE 2126, OF THE PUBLIC RECORDS OF ORANGE COUNTY, FLOr~IDA. TRACT 2, ORLANDO GROVES ASSOCIATION, LAKE LOTTA GROVES, AS RECORDED IN PLAT BOOK E, PAGE 52, OF THE PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA, LESS THE SOUTH 741.29 FEET THEREOF AND ALSO, LESS THE STATE ROAD SO RIGHT OF WAY, LYING IN SECTION 28, TOWNSHIP 22 SOUTH, RANGE 28 EAST, AND Al.SO l.ESS THE FOl.LOWING TRACT OF LAND FOR THE EAST-WEST EXPRESSWAY (RIGHT OF WAY): A PORTION OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 28, TOWNSHIP 22 SOUTH, RANGE 28 EAST, ORANGE COUNTY, FLORIDA; ALSO BEING A PORTION OF TRACT 2, ORLANDO GROVES ASSOCIATION, LAKE LOTTA GROVES, AS RECORDED IN PLAT BOOK E, PAGE 52, OF THE PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE NORTHEAST CORNER OF THE NORTHWEST 1/4 OF SECTION 28, TOWNSHIP 22 SOUTH, RANGE 28 EAST, m~ANGE COUNTY, FLORIDA; THENCE RUN SOUTH 00"19'SO" EAST, A DISTANCE OF 82.22 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY I..INE OF STATE ROAD 50; THENCE RUN SOUTH 89048'00" WEST, ALONG SAID RIGHT OF WAY LINE. A DISTANCE OF 234.03 FEET TO THE POINT OF BEGINNING; THENCE DEPARTING SAID RIGHT OF WAY LINE RUN SOUTH 45":35'12" WEST, A DISTANCE OF 50,19 FEET TO A POINT ON THE EASTERl.Y RIGHT OF WAY LINE OF CITRUS OAKS AVENUE (PRIVATE STREET); THENCE NORTH 00"12'00" WEST, ALONG SAID EASTERLY RIGHT OF WAY LINE, A DISTANCE OF 35,00 FEET TO THE SAID SOUTHERLY RIGHT OF WAY LINE OF STATE ROAD SO; THENCE NORTH 89048'00" EAST ALONG SAID SOUTHERLY RIGHT OF WAY LINE, A DISTANCE OF 35,97 FEET TO THE POINT OF BEGINNING, TOGETHER WITH NON-EXCLUSIVE RIGHTS OF INGRESS AND EGRESS AS SET FORTH IN THAT CERTAIN NON.EXCLUSIVE EASEMENT AS DESCRIBED IN OFFICIAL f~ECORDS BOOK 3534, PAGE 307, PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA, TOGETHER WITH THE LANDS LYING WEST OF THE CENTERLINE OF MICHIGAN AVENUE, AS NOW VACATED. LESS AND EXCEPT THOSE LANDS AS SET FORTH IN THAT ORDER OF TAKING RECORDED IN OFFICIAL RECORDS BOOK 4081. PAGE 3512 AND THAT STIPULATED FINAL JUDGMENT RECORDED IN OFFICIAL RECORDS BOOK 4092, PAGE 4297, OF THE PUBLIC RECORDS OF ORANGE COUNT)', FLORIDA. 4 ORLA 1060851,2 ORLA_1060851.2 e- '--<-' :......- - ''--''''--- '-l'll. ~ _ ,._J.- --- - ,.,.~.....~ 1:I~.prQClit't' EfEl;:=~:=/ Zenn; O~II"''''CQr'l 0<1"..... ~!l.1lIl ~...Il _su:..IllO,,^-21 5rgte-Fomt, :lwelrog ~R-l."IN\) .Sl-'gte-Faml, :JAt:I..O ~R-1..vu 5rgte-Fomt, :lwe...g ~R-l."J L..a.5rgle-FOn1l, :lwe...g ~R-ll c.o..e-& __1/ :lwe1..glR-~' _"",.,.....,,,.,,,. c..e"'~ ('<-3, _"""'.. t<a-e5uxt...cn ,RT-lI __1I"'~' cme... 15erYC.. iP-6; _ """,,oaT"_ S"lCO:>n~ lyl,1 _ CCITr....ll' CO_er:lOl (C-~I _0<1"....., Ca::mer.IOI ~C-.I -~~~~~"~ _0<1".....' In:l.W~ II-~) CcfTr.."e-...aIPI..O. .:..0.. 0....." (1'\..0> _""'''umo.r.ly,PJ:l1 _HT~ll'I.>'\J:l1 _Pu~t:\..~t(PlT.)1 I' fi: U-do..t!~ ~..es m"'C "loSteo' E<<Jes EXHIBIT "B" Citrus Oaks Center Proposed Zoning Map 5 THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Dorothy E. Watson, Esq. FOLEY & LARDNER LLP 111 North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 RETURN TO: For Recording Purposes Only Beth Eikenberry, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407) 656-2322 DEVELOPMENT AGREEMENT (Citrus Oaks Center) THIS DEVELOPMENT AGREEMENT ("this Agreement") is made and entered into as of the _ day of , _ by and between CITRUS OAKS CENTER, INC., a Florida corporation, whose mailing address is P.O. Box 2788, Orlando, FL 32802-2788 (hereinafter referred to as the "Owner") and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761, Attention: City Manager (hereinafter referred to as the "City"). W ! T N ~ ~ ~ E T H: WHEREAS, the Owner owns fee simple title to certain lands located in Orange County, Florida, and within the corporate limits of the City of Ocoee, Florida, said lands being more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (hereinafter referred to as the "Property"); and WHEREAS, pursuant to the petition of the Owner, on , _ the Ocoee City Commission approved Ordinance No. rezoning the Property as "PUD" under the Ocoee Land Development Code; and WHEREAS, the provisions of Section 4-5A(5) of Article IV of the Ocoee Land Development Code requires that the Owner and the City enter into a development agreement incorporating all plans and conditions of approval by reference; and WHEREAS, the Owner and the City desire to execute this Agreement in order to fully comply with the provisions of the Ocoee Land Development Code. ORLA_1056389.1 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. by this reference. Recitals. The above recitals are true and correct and incorporated herein Section 2. Development of the Propertv. A. The Owner hereby agrees to develop the Property in accordance with that certain PUD Land Use Plan for Citrus Oaks Center prepared by Laura Turner Planning Services, date stamped as received by the City on (hereinafter referred to as the "Land Use Plan"). The Land Use Plan is hereby incorporated herein by reference as if fully set forth herein. B. The Owner hereby agrees that the Property shall be developed in accordance with and is made subject to those certain Conditions of Approval attached hereto as Exhibit "B" and by this reference made a part hereof (the "Conditions of Approval"). The Owner further agrees to comply with all of the terms and provisions of the Conditions of Approval. The Conditions of Approval attached hereto as Exhibit "B" are the same as the Conditions of Approval set forth in the Land Use Plan. C. Except as otherwise expressly set forth in this Agreement and the Land Use Plan it is agreed that (1) the Owner shall comply with the zoning and subdivision regulations of the City as set forth in the Ocoee Land Development Code, as it may from time to time be amended, and (2) all preliminary subdivision plans, fInal subdivision plans, and fmal site plans for the Property or any portion thereof shall conform to the Ocoee Land Development Code requirements in effect at the time of approval of any such plans. In the event of any conflict between the provisions of the Ocoee Land Development Code, as it may from time to time be amended, and this Agreement, it is agreed that the provisions of this Agreement shall control. D. All capitalized terms not otherwise defmed herein shall be as defmed or described on the Land Use Plan, unless otherwise indicated. Section 3. Notice. Any notice delivered with respect to this Agreement shall be in writing and be deemed to be delivered (whether or not actually received) (i) when hand delivered to the other party, (ii) upon receipt when deposited in the United States Mail, postage prepaid, certifIed mail, return receipt requested, or (iii) the next business day after being sent by nationally recognized overnight delivery service for next business day delivery, all addressed to the party at the address appearing on the first page of this Agreement, or such other person or address as the party shall have specifIed by written notice to the other party delivered in accordance herewith. Section 4. Permitted Uses~ Prohibited Uses. As a material inducement to the agreement of the City to rezone the Property, the Owner agrees that the Property will be developed in accordance with those uses permitted in Table 5-1 of the City of Ocoee Land Development Code as specifIed in the "C-2", Conununity Commercial District, except for the ORLA_1056389.1 -2- following uses which are expressly prohibited on the Property: drive-in restaurant, miniature golf course, pawn shop, equipment sales, funeral parlor, movie theater, nursing home, grocery store/supermarket, automotive repair, automotive sales, automotive service, commercial convenience, commercial convenience with gas sales, gas station, hotel/motel, hospital, bar, check cashing services, and day labor. Section 5. Covenant Runnin2 with the Land. This Agreement shall run with the Property and inure to and be for the benefit of the parties hereto and their respective successors and assigns and any person, firm, corporation, or entity who may become the successor in interest to the Property or any portion thereof. Section 6. Recordation of A!!Teement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at the Owner's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Owner, execute and deliver letters affirming the status of this Agreement. Section 7. 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 8. 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 9. A2reement; 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 10. Further Documentation. The parties agree that at any time following a request therefor by the other party, each shall execute and deliver to the other party such further documents and instruments, in form and substance reasonably necessary to confirm and/or effectuate the obligations of either party hereunder. Section 11. Specific Performance. Both the City and the Owner shall have the right to enforce the terms and conditions ofthis Agreement by an action for specific performance. Section 12. Attornevs' 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, legal assistants' 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 13. 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. ORLA_1056389.1 .... -.)- Section 14. 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 15. Severabilitv. If any 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. Section 16. Effective Date. This Agreement shall fIrst be executed by the Owner and submitted to the City for approval by the Ocoee City Commission. Upon approval by the Ocoee City Commission, this Agreement shall be executed by the City. The Effective Date of this Agreement shall be the date of execution by the City. IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be executed by their duly authorized officers as of the day and year fIrst above written. Signed, sealed and delivered in the presence of OWNER: CITRUS OAKS CENTER, INC., a Florida corporation ~-:-.-. ~~o By: I~ Name: J~o.""" ISr,n+- Its: <Pr-['<"'> rl(>r, r ORLA_' 056389.' -4- STATE OF FLORIDA COUNTY OF f)/2 ?'l1jL v I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the ~ . and ,County aforesaid to take acknowledgments, personally appeared ~Ct1 ~""'C""71 t , who r Vl is personally known to me or LJ produced as identification, and that acknowledged executing the same 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 ,J./ sf- day of -fttf"i , Jt r; f . - ~ - ~---, ~--~ swm OGEEAALLY ~ ~ . Sl!l9 of FIlIl1!1 CCm!!lIa!on Elpm Jlln 29. 2010 ~'DO E6964S Name of Notary (Typed, Printed or Stamped) Signature of Notary Commission Ntunber (if not legible on seal): My Commission Expires (if not legible on seal): ORLA_1056389.1 -5- Signed, sealed and delivered in the presence of: Print Name: Print Name: FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this day of FOLEY & LARDNER LLP By: City Attorney ORLA_1056389.1 CITY: CITY OF OCOEE, FLORIDA By: S. Scott Vandergrift, Mayor Attest: Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON UNDER AGENDA ITEM NO. -6- 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, personally appeared S. SCOTT VANDERGRIFT and BETH EIKENBERRY, 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 Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (ifnollegible on seal): My Commission Expires (if not legible on seal): ORLA_1056389.1 -7- JOINDER AND CONSENT The undersigned hereby celtifies that it is the holder of that certain Mortgage and Security A2:reement dated the 21st day of1\ovember. 1997 and recorded in Official Records Book 5374. - ~. . Page 3022, as modified by that certain Assigrunent of Mortgage and Related Loan Documents dated the 26th day of August, 1998 and recorded in Official Records Book 5557, Page 3276, as modified by that celtain Mortgage Note and Mortgage Renewal and Modification Agreement dated the 26th day of August 1998 and recorded in Official Records Book 5557, Page 3278, as affected by that Certain Satisfaction of Mortgage dated the 26th day of October 1998 and recorded in Official Records Book 5670, Page 1353, as modified by that certain Assigrunent, Assumption and Modification Agreement dated the 23rd day of October 2006 and recorded in Official Records Book 8933, page 2894, as affected by that certain Assigrunent of Leases, Rents, and Profits dated the 21st day of November 1997 and recorded in Official Records Book 5374, Page 3042, as affected by that certain Amended and Restated Assignment of Leases, Rents and Profits dated the 26th day of August 1998 and recorded in Official Records Book 5557, Page 3312, and as affected by that certain UCC Financing Statement recorded on October 24th, 2006 in Official Records Book 8933, Page 2902, all of the Public Records of Orange County, Florida, upon the above described property and the undersigned, for and in consideration of valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby join in and consent to the execution of the foregoing Development Agreement and agree that the lien of its mortgage described herein above shall be subordinated to the aforedescribed Development Agreement. Signed, sealed and delivered in the presence of: .& e &a,a... ') Modem Woodmen of America (Print name of Mortgage holder) Print Name: G. P. Odean t#a:Jlsec~ Print ,me: Christv S. Graham Manager, Mortgage Division r/(jJg .."'- ~ /- /'; , la-Uvt By: Printed Name: Nick S. Coin Title: Treasurer & Investment Mana2:er ORLA_1056389.1 -8- ST ATE OF ILLINOIS COUNTY OF ROCK ISLAND The foregoing instrument was acknowledged before me this 21 st day of July 2008, by ?\ick S. Coin who is the Treasurer & Investment Manager of Modem Woodmen of America. He is personally known to me. ~j ~' ~u-L-- SIgnature of Notary OFFICIAL SEAL LINDA J. KENDALL Notary Public. Slate of Illinois My Commission Expires Mar 02. 2012 Linda J. Kendall Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on sea!): 256076 My Commission Expires (if not legible on seal): 3/2/2012 ORLA_1 056389.1 -9- l EXHIBIT "A" THE PROPERTY That part of the following described property lying East of Citrus Oaks Avenue as described in Official Records Book 3517, page 2126, of the Public Records of Orange County, Florida. Tract 2, Orlando Groves Association, Lake Lotta Groves, as recorded in Plat Book E, page 52, of the Public Records of Orange County, Florida, less the South 741.29 feet thereof and also, less the State Road 50 right of way, lying in Section 28, Township 22 South, Range 28 East, and Also less the following tract ofland for the East-West Expressway (right of way): A portion of the Northeast 1/4 of the Northwest 1/4 of Section 28, Township 22 South, Range 28 East, Orange County, Florida; also being a portion of Tract 2, Orlando Groves Association, Lake Lotta Groves, as recorded in Plat Book E, page 52, of the Public Records of Orange County, Florida, being more particularly described as follows: Commence at the Northeast comer of the Northwest 1/4 of Section 28, Township 22 South, Range 28 East, Orange County, Florida; thence run South 00019'50" East, a distance of 82.22 feet to a point on the Southerly right of way line of State Road 50; thence run South 89048'00" West, along said right of way line, a distance of234.03 feet to the point of beginning; thence departing said right of way line run South 45035' 12" West, a distance of 50.19 feet to a point on the Easterly right of way line of Citrus Oaks Avenue (private Street); thence North 00012'00" West, along said Easterly right of way line, a distance of35.00 feet to the said Southerly right of way line of State Road 50; thence North 89048'00" East along said Southerly right of way line, a distance of35.97 feet to the point of beginning. Together with non-exclusive rights of Ingress and Egress as set forth in that certain non-exclusive easement as described in Official Records Book 3534, page 307, Public Records of Orange County, Florida. Together with the lands lying West ofthe centerline of Michigan Avenue, as now vacated. Less and except those lands as set forth in that Order of Taking recorded in Official Records Book 4081, page 3512 and that Stipulated Final Judgment recorded in Official Records Book 4092, page 4297, of the Public Records of Orange County, Florida. ORLA_1056389.1 -10- L EXHIBIT "B" CONDITIONS OF ApPROVAL 1. To the extent the Land Use Plan and these Conditions of Approval conflict with the City of Ocoee Land Development Code, the provisions of the Land Use Plan and these Conditions of Approval shall control. 2. This project shall comply with, adhere to, and not deviate from or otherwise conflict with any verbal or written promise or representation made by the Owner/Applicant (or authorized agent thereof) to the City Commission at any public hearing where this project was considered for approval, where such promise or representation, whether oral or written, was relied upon by the City Commission in approving the project, could have reasonably been expected to have been relied upon by the City Commission in approving the project, or could have reasonably induced or otherwise influenced the City Commission to approve the project. For purposes of this Condition of Approval, a "promise" or "representation" shall be deemed to have been made to the City Commission by the Owner/Applicant (or authorized agent thereof) if it was expressly made to the City Commission at a public hearing where the project was considered for approval. 3. The City of Ocoee is subject to the terms, provisions and restrictions of Florida Statutes, Chapter 163, concerning moratoria on the issuance of building permits under certain circumstances. The City has no lawful authority to exempt any private entity or itself from the application of such state legislation and nothing herein shall be construed as such an exemption. 4. Nothing herein shall be construed to waive any provision of the Land Development Code except to the extent expressly set forth on a waiver table or explicitly set out on this Plan. 5. There shall be no access from the property to any public road except at the approved locations shown on the Land Use Plan. 6. All legal instruments related to the project, if any, including but not limited to, restrictive covenants, deeds, and conservation, utility or other easements, shall be subject to approval by the City and provided prior to the approval of this Plan. 7. All cross access, utility and drainage easements, if any, shall be subject to the review and approval by the City and provided prior to any approval of this Plan. 8. A perpetual, non-exclusive access easement over all internal roadways and other paved areas is hereby granted in favor of the City of Ocoee and other applicable authorities for law enforcement, code enforcement, fire and other emergency services. The City may 9. Parking shall be provided in accordance with the City ofOcoee Land Development Code. 10. The stormwater system, including all pipes, inlets, manholes and structures, and retention ponds), will be owned, operated and maintained by the Owner in accordance with all City of Ocoee and St. Johns River Water Management District Requirements. 11. The Owner shall comply with all requirements of the City and other governmental entities with jurisdiction to protect the wetlands being preserved and to prevent any disturbance, siltation, or other construction below the natural wetland lines. 12. The improvements shown on the Land Use Plan are for informational purposes only. No development approvals are granted with respect to any improvements by virtue of this Land Use Plan. 13. Reclaimed water will be used for irrigation purposes, if available. 14. The Owner shall be prohibited from installing any additional ground signs on the property or increasing the size of the existing ground sign currently located on the property. 15. Within 60 days of City approval of the Land Use Plan, the Owner shall, at its sole cost and expense, modify the existing wall pack lights currently located on the property to provide any shielding or other improvements required pursuant to Section of the 6- 14(C)(2)(i) of the Land Development Code. ORLA_1 056389. 1 -12-