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HomeMy WebLinkAboutEmergency Item - Woodbery Family Ltd.: Stimpulated Order of Taking and Final Judgement = FOLEY AGENDA ITEM COVER SHEET Meeting Date: -::fUlle. '~l 2c:x::::Pl Item # Erner~6 fI-hn Contact Name: Contact Number: Mary Solik 407 -423-7656 Reviewed By: Department Director: City Manager: Subject: Woodbery Family Ltd.; Stipulated Order of Taking arid Final Judgment Background Summary: The City needs to acquire the easement necessary to extend utilities through the Woodbery Family LLP property to the east of Arden Park Phase 1 property. Attached is a settlement proposal that disposes of litigation directed to acquisition of easement. Issue: Recommendations Approve Stipulated Order of Taking and Final Judgment. Attachments: Memorandum dated June 12, 2009 from FOley & Lardner LLP Financial Impact: None Type of Item: D Public Hearing D Ordinance First Reading D Ordinance First Reading D Resolution [81 Commission Approval D Discussion & Direction For Clerk's Deol Use: D Consent Agenda D Public Hearing D Regular Agenda D Original DocumenVContract Attached for Execution by City Clerk D Original DocumenVContract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. D D o Reviewed by Assistant City Manager ORLA_1337905.1 :FOLEY FOLEY & LARDNER LLP I FOLEY ATTORNEYS AT LAW 111 NORTH ORANGE AVENUE, SUITE 1800 ORLANDO. FL 32801.2386 P. O. BOX 2193 ORLANDO. FL 32802.2193 407.423.7656 407.648.1743 WWW.FOLEY.COM FOLEY & LARDNER LLP 407.244.3259 MEMORANDUM CLlENT.MAnER NUMBER 020377.0799 TO: FROM: The Honorable Mayor and City Commissioners of the City ofOcoee Mary Doty Solik, Assistant City AttorneyW S THROUGH: Paul R. Rosenthal, City Attorney DATE: June 12,2009 RE: Woodbery Condemnation Resolution Pursuant to the Development Agreement entered into between the City of Ocoee and Arden Park Ventures, LLC on November 21, 2006, the City agreed to utilize its best efforts to acquire the easement necessary to extend utilities through the Woodbery Family LLP property to the east of Arden Park Phase 1 property. This extension of the City's water line from Clarke Road to the Arden Park Phase I property will "loop" the City's water utility in this area. Pursuant to the Development Agreement, Arden Park is responsible for the design, engineering, permitting, and construction of any utility extension, but the City is responsible for the cost of acquisition of the necessary easement. The City has had the necessary easement appraised by Dan DeRango of DeRango Best & Associates who arrived at an appraised value of $19,710.00. The City made an offer to purchase the easement from the Woodbery family at its appraised value, but the Woodbery Family rejected the City's offer. During my conversations with various Woodbery family members, they uniformly expressed their displeasure about the City's decision to put a water line through their property, particularly objecting to the issue of its serving the Arden Park development. The City filed an eminent domain action last fall and an Order of Taking hearing was set for just before Christmas. The Woodberys hired attorney Prineet Sharma of the Harris, Harris, Bauerle, and Sharma eminent domain law firm. Mr. Sharma indicated to me that the 2 ORLA_ 1337905.1 : FOLEY FOLEY & LARDNER LLP direction from his clients was to attempt to defeat the order of taking on grounds that the City, lacked the requisite public need and necessity to acquire the easement through their property. In early December, the judge assigned to the case cancelled our hearing and at the end of the year the case was transferred to a new judge. Due to issues created by the case transfer we were not able to get the Order of Taking hearing scheduled until June 11, 2009. During the interim, however, we engaged in informal discovery and engaged in several discussions with Mr. Sharma and his engineer to further educate them as the design and function of the city's water system, and the necessity to acquire the easement through his client's property. A week before the scheduled hearing Mr. Sharma forwarded a settlement proposal that included the following elements: · $81,000 in cash to the Woodberys; . $25,000 in attorneys' fees; . $8,000 in engineering fees; · The taking of a Temporary Construction Easement in addition to the utility easement; · Modification of the language of the utility easement to limit it to the installation of a water line and reuse line; · Approximately $20,000 worth of tees and valves added to proposed lines to facilitate the eventual connection to the line by the Woodbery property. In exchange for this package the Woodberys agreed they would stipulate to the Order of Taking and the entry of final judgment. Because the City's ability to prevail on the public need and necessity issue at the Order of Taking hearing was not certain, we engaged in several days of discussions and counter proposals. We ultimately reached the proposed settlement being presented to you today in the form of the attached Stipulated Order of Taking and Final Judgment. The relevant terms are as follows: · $51,500 cash to the Woodberys, which includes land value, damages, attorneys' fees and engineering fees; · A modified easement limited to the water line and reuse water line; · The granting of a two-year temporary construction easement to the City; · Transfer of $30,000 in water impact fee credits upon annexation into the City and connection to the lines. Although the $51,500 number is much higher than our appraised value of $19,710 it is inclusive of several elements of damage. The property owner has not had the easement appraised, but if they had, their appraiser's value would surely have been higher. It includes the value of the temporary construction easement which the City did not have appraised. It also 3 ORLA_1337905.1 : FOLEY FOLEY & LARDNER LLP includes attorneys' fees and costs and engineering costs, for which the City is obligated to pay under Florida law. It is my opinion that this settlement, set forth in the attached Stipulated Order of Taking and Final Judgment is reasonable and cost-effective. It also eliminates any risk that we might not have prevailed at the Order of Taking hearing. RECOMMENDATION It is respectfully recommended that the City Commission approve the attached Stipulated Order of Taking and Final Judgment and authorize staff to execute all documents necessary to conclude this matter. cc: Robert Frank, City Manager Jamie Croteau, Assistant City Manager David Wheeler, City Engineer 4 ORLA_1337905.1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CASE NO. DIVISION: 08-CA-22777 33 (Rodriquez) CITY OF OCOEE, a municipal corporation created by and existing under the laws of the State of Florida, Petitioner, v. WOODBERY FAMILY LLP, a Florida limited liability partnership, and al1 persons, claiming or having an interest by, through, and under or against the above-named party, Respondent. I STIPULATED ORDER OF TAKING AND FINAL JUDGMENT THIS CAUSE having come on for consideration upon the Joint Motion for Entry of a Stipulated Order of Taking and Final Judgment made by the Petitioner, CITY OF OCOEE ("Petitioner"), and Respondent, WOODBERY FAMILY LLP ("Respondent"), and it appearing to the Court that the parties were authorized to enter such motion, and the Court finding that the compensation to be paid by the Petitioner is full, just, and reasonable for all parties concerned, and the Court being otherwise ful1y advised in the premises, it is now therefore; ORDERED AND ADJUDGED as follows: 1. Proper notice was given to the Respondent and all other persons having or claiming any interest, lien or title in or to the real property described in the Petition. 2. The Court has jurisdiction of the subject matter of, and the parties to, this cause. ORLA_1337420.1 -1- 3. The pleadings in this cause are sufficient, and Petitioner is properly exercising its delegated authority. 4. The estimate of value based upon the Declaration of Taking filed in this cause by Petitioner was made in good faith. 5. Upon payment of the amount set forth in Paragraph 6 of this Stipulated Order of Taking and Final Judgment, all right, title and interest specified in the Underground Water and Reuse Line Easement, attached as Exhibit "A," and the Nonexclusive Temporary Easement Agreement, attached as Exhibit "B," shall vest in Petitioner. 6. Respondent WOODBERY FAMILY LLP, recovers from Petitioner the total sum of Fifty-One Thousand, Five Hundred ($51,500.00) for the real property taken, improvements thereon, interest, and all other claims and damages of any other nature, inclusive of all attorneys' fees and costs for the taking of the property described in Exhibits "A" and "B." 7. In exchange for the easement attached as Exhibit "A," Petitioner will provide Respondent with credits to be applied to future water capital charges, in the form of the Agreement attached as Exhibit "c." 8. Within 10 days of execution of this Stipulated Order of Taking and Final Judgment, Respondents shall deliver to Petitioner executed originals of the Easement Agreements attached as Exhibits "A" and "B." Petitioner will be responsible for recording the executed Easements. 9. Within 30 days of execution of this Stipulated Order of Taking and Final Judgment, Petitioner shall deliver a check in the amount of $51,500.00 made payable to the Harris, Harris, Bauerle & Sharma Trust Account, c/o Prineet Sharma, Esq., 1201 East Robinson Street, Orlando, Florida 32801. ORLA_1337420.1 -2- DONE AND ORDERED in Chambers at Orlando, Orange County, Florida, this _ day of 2009. Circuit Judge CERTIFICA TE OF SERVICE I HEREBY CERTIFY that on June , 2009, I electronically filed the foregoing with the Clerk of Court by using the ECF system which will send a notice of electronic filing to Prineet Sharma, Esq., Harris, Harris, Bauerle & Sharma, 1201 East Robinson Street, Orlando, Florida 32801. /s/Mary D. Solik Mary D. Solik Assistant City Attorney Florida Bar No. 0856479 FOLEY & LARDNER LLP 111 N, Orange Avenue, Suite 1800 Orlando, FL 32801 Telephone: (407) 244-3259 Facsimile: (407) 648-1743 Attorneys for Petitioner ORLA_1337420.1 -3- JOINT MOTION FOR ENTRY OF STIPULATED ORDER OF TAKING AND FINAL JUDGMENT The parties respectfully move for the entry of the foregoing Stipulated Order of Taking and Final Judgment. Prineet Sharma, Esq. Florida Bar No. 0154520 Harris, Harris, Bauerle & Sharma 1201 East Robinson Street Orlando, Florida 32801 Telephone: 407-843-0404 Facsimile: 407-843-0444 Attorneys for Woodbery Family, LLP Mary D. Solik, Esq. Assistant City Attorney Florida Bar No. 0856479 Foley & Lardner LLP 111 N. Orange Ave., Suite 1800 Orlando, Florida 32802 Telephone: 407-423-7656 Facsimile: 407-648-1743 Attorneys for City of Ocoee ORLA_1337420.1 -4- THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Mary D. Solik, Esq. Foley & Lardner LLP II IN. Orange Avenue Suite 1800 Orlando, Florida 3280 I For Recording Purposes Only UNDERGROUND WATER AND REUSE LINE EASEMENT THIS UNDERGROUND UTILITY EASEMENT is made this _ day of _, by Woodbery Family, LLP, a Florida limited liability partnership, whose address is 900 Crookcd Oak Court, Longwood, Florida 32779, hereinafter referred to as "Grantor," in favor of THE CITY OF OCOEE, FLORIDA, a municipal corporation duly creatcd and existing under and by virtue of the laws of the State of Florida, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761, hereinafter referred to as the "City." (wherever used herein the tenus "Grantor" and "City" shall include all the parties to this instrument and the heirs, legal representatives and assigns of individuals, and the successors and assigns of corporations, partnerships (including joint ventures), public bodies and quasi-public bodies.) WIT N E SSE T H: That for and in consideration of the sum of Ten Dollars ($10.00) and other valuable considerations in hand paid to the Grantor by the City, the receipt and sufficiency of which is hercby acknowledged, the Grantor does hereby grant, bargain, sell, convey and warrant to the City, its successors and assigns forever, an exclusive easement for underground utility purposes, with full authority to enter upon, excavate, construct and maintain, as the City and its assigns may deem necessary, a water and water reuse pipe under, upon and through the following-described lands situatc in thc County of Orange, Statc of Florida, to-wit: SEE EXHmIT "A" AITACHED HERETO AND INCORPORATED HEREIN BY REFERENCE (the "Easement Area") TO HAVE AND TO HOLD said easement unto said City and its assigns forever. The City and its assigns shall have the right to clear, and remove from said Easement Area all trees, undergrowth, and other obstructions that may interfere with location, excavation, construction and maintenance of the utilities or any facilities installed thereon by the City and its assigns, and the Grantor, its successors and assigns, agree not to build, construct, or create, or permit others to build, construct, or create any buildings or other structures on the Easement Area that may interfere with the location, excavation, operation or maintenance of the utilities, or any facilities installed thereon. Provided the City at its cost, restores Grantor's property to substantially the same condition prior to exercise of said FORM - 32 ORLA_1036416.3 I EXHIBIT A easement rights. Grantor reserves the right for itself and successors and assigns to use the easement premises for any and all purposes whatsoever not inconsistent with this easement, including but not limited to, access over and across the easement. City agrees to indemnity and hold Grantor harmless from any and all damages and injuries, whether to persons or property, and against any and all losses, claims or damages incurred by Grantor arising from said Facilities on Grantor's property, and City's negligence or failure to exercise reasonable care in the construction, reconstruction, operation or failure to exercise reasonable care in the construction, reconstruction, operation or maintenance of said Facilities located on the above-described easement, as limited by and without waiving the Grantee's right of Sovereign Inununity under Florida Law. Grantor does hereby covenant with the City, that it is lawfully seized and possessed of the real estate above described, that it has a good and lawful right to convey the said easement and that it is free from all liens and encumbrances. SIGNED, SEALED, AND DELIVERED IN THE PRESENCE OF : GRANTOR: WOODBERY FAMILY, LLP, a Florida limited liability partnership Print Name: By: Its: Print Name: Print Name: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of 2009 by , who [] is personally known to me or [ ] produced as identification. {Notary Seal must be affixed} Signature of Notary Name of Notary (Typed. Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible on seal): ORLA_1036416.3 -2- Legal Oescrip tion A portion of land lying in Section 4, Township 22 South, Range 28 East, Orange County. Florida, being more particularly described as follows: EXHIBIT I---A- Commence at the northwest comer of the Northeast 1/4 of said Section 4; thence run S 01 "27'07" W. along the west line of the Northeast 1/4 of said Section 4, 0 distance of 2190.71 feet for the POINT OF BEGINNING; thence, deporting said west line, run S 88'32'53" E, 0 distance of 624.53 feet to a poin t on th e westerly right-of- way line of Clorke Road, os described and recorded in Official Records Book 4352, Page 1655, Public Records of Orange County. Florida; thence run S 0170'45" W. olong said westerly right-of-way line, o distance of 20.00 feet; thence, deporting said westerly right-of-way line, run N 88'32'53" W. 0 distance of 624,63 feet to 0 point on the aforesaid west line of the Northeast 1/4 of said Section 4; thence run N 01"27'07" E, along said west line, 0 distance of 20.00 feet to the POINT OF BEGINNING. -"T~point of ~ ,. ~ Commencement ..!. :5l NW cornBr of ';' 0;; the NE 1/4 of '" ... : Section 4-22-28 l~ I . u !~( . 0 I "'... fS ~ ~~I:l-.. o e I;) .,:5 ;.... 'Ii.... F'< .g ::5 ~ l"l Point of i:, / Beginning V S 88'32'53" E lOa' ! F:f::J Containing 0.29 acres, more or less. unplatted "tl .. tl ~ 0 ~ f Q:-" J. f l f 1IJ f;f t ..lc: ~ ~ ... lli o Ili ci PRAIRIE LAKE VILLAGE, PHASE I Plot Book J/l, Pages /l9 and 70 /. N 01'27'07" E : 20.00' I I \..) , " , - , I I , I , I I , , , I ....--.....------. " : I I' " " I' ti--------------------- Majestic Elm Boulevard S 01;0'45" W 20.00' NR unplatted 100' Not 0 Boundary Survey. Legal description was prepared by the Surveyor. O.R.B. - Official Records Book Sketch of Description of 0 SKETCH OF DESCRIPTION ONL Y - NOT A SURVEY Utility Easemen t lying In NO CORNERS WERE SET AND GANUNG-BEL TON ASSOCIA TES. INC. ASSUMES NO RESPONSIBiLiTY BEYOND ACCEPTED MATHEMAnCAL CLOSURES. ALL BEARINGS AND DISTANceS SHOWN HEREON ARE SUBJECT TO FIELD VERIFICA nON. Section 4, Township 22 South, Range 28 East Orange County, Florida ~EB~ GAp~~~:~o~:L ~~~.~~~~~~A ~~~;.~~c. 1 of 1 PREPARED FOR: Arden Park Ven tures LLC JOB NO. 0513.24 SHECT DAn: 4/24/08 1275 E. Robinson Street, Orion do, FL 32801 (407) 894-6656 SCAIL f" = 150' THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Mary D. Solik, Esq. FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 For Recording Purposes Only NON-EXCLUSIVE TEMPORARY EASEMENT AGREEMENT THIS NON-EXCLUSIVE TEMPORARY EASEMENT AGREEMENT is made and entered into this _ day of 2009, by and between WOODBERY FAMILY, LLP, a Florida limited liability partnership, whose address is 900 Crooked Oak Court, Longwood, Florida 32779 (hereinafter referred to as the "Grantor"), and the CITY OF OCOEE, a Florida municipal corporation, whose address is 150 N. Lakeshore Drive, Ocoee, FL 34761, (hereinafter referred to as the "Grantee"). WITNESSETH: WHEREAS, Grantor is the owner of that certain real property located in Orange County, Florida, as more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Easement Property"); and WHEREAS, Grantee has requested, and Grantor has agreed to grant and convey to Grantee, a non-exclusive temporary easement over, upon and across the Easement Property for the specific and limited purposes hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants, promises, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Section 1. The above recitals are true and correct, fonn a material part of this Agreement and are incorporated herein by reference. Section 2. Grantor hereby gives, grants, bargains, sells, and conveys to Grantee a non-exclusive temporary easement over, upon and across the Easement Property for the purposes hereinafter stated (the "Easement"), all subject to the terms, conditions, and limitations set forth herein. EXHIBIT I~ ORLA_1337489.1 Section 3. Grantor hereby warrants and guarantees to Grantee that Grantor has fee title to the Easement Property, subject to easements, reservations, restrictions, and rights-of-way of record, if any, and the Grantor has full power and authority to grant this Easement as to the Easement Property. Section 4. Grantee's use of the Easement Property shall be for the purpose of Grantee, through itself, its agents, contractors, consultants and employees: (a) performing such activities on the Easement Property as Grantee may deem reasonably necessary in connection with the design, engineering, and constmction of a water line and water reuse line within that Underground Water and Reuse Line Easement, attached as Exhibit B. Section 5. This Easement is non-exclusive, and Grantor reserves to itself, its successors and assigns, the non-exclusive right to use, pass and repass over and upon the Easement Property. Each party shall use the rights granted and reserved by this Easement Agreement with due regard to the rights of the other party to use and enjoy the Easement Property. Section 6. The Easement shall terminate upon the earlier of (a) the completion of the constmction of water line and reuse water line as certified by the City, or (b) June 30, 2011. Upon termination of the Easement, Grantee shall record a Notice of Termination in the Public Records of Orange County, Florida. Section 7. Grantee shall, at its sole cost and expense, restore any improvements on the Easement Property that are damaged by Grantee incident to its constmction of the Project to a condition which approximates as closely as is reasonably practicable the condition of said improvements prior to being damaged by Grantee. Section 8. To the extent permitted by law, the Grantee agrees to indemnify and hold harmless the Grantor from and against any and all claims, actions, causes of action, loss, damage, injury, liability, cost or expense, including without limitation attorneys' fees (whether incurred before, during or after trial, or upon any appellate level), arising from the Grantee's use of the Easement Property or from the exercise by the Grantee of any rights granted by this Easement Agreement. Section 9. The Easement shall be binding upon and inure to the benefit of the parties specified herein, their respective legal representatives, successors and assigns, and the benefits and burdens hereof shall run with the Easement Property, Section 10. This Easement Agreement may be modified or amended only upon the mutual written consent of Grantee and Grantor, or their respective legal representatives, successors and assigns. 2 ORLA_1337489.1 IN WITNESS WHEREOF, the parties hereto have subscribed their names and have caused this Easement Agreement to be executed as of the day and year first above written. Signed, sealed and delivered in the presence of: GRANTOR: WOODBERY FAMILY, LLP, a Florida limited liability partnership By: Name: Title: Print Name Print Name STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of 2009, by as of Woodbery Family, LLP. He/She is D personally known to me or 0 has produced as identification. WITNESS my hand and official seal in the County and State aforesaid this _ day of 2009. Notary Public Print Name My Commission Expires: 3 ORLA_1337489.1 Signed, sealed and dclivered in the prescncc of: Print Name Print Name FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. APPROVED AS TO FORM AND LEGALITY THIS DA Y OF 2009. By: Foley & Lardner City Attorney STATE OF FLORIDA COUNTY OF ORANGE GRANTEE: CITY OF OCOEE, a Florida municipal corporation By: Name: S. Scott Vandergrift Title: Mayor Attest: Name: Title: City Clerk [Affix Seal] APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON UNDER AGENDA ITEM NO. The foregoing instrument was acknowledged before me this _ day of 2009, by S. Scott Vandergrift, as Mayor of the City of Ocoee. He is o personally known to me or 0 has produced as identi fication. WITNESS my hand and official seal in the County and State aforesaid this _ day of 2009. ORLA_1337489.1 Notary Public Print Name My Commission Expires: 4 Legal Description A portion of land lying in Section 4, Township 22 South, Range 28 East, Orange Coun t Yo Florida, being more particularly described as follows: I . 20 feet north of and contiguous to: Commence at the northwest corner of the Northeast 7/4 of said Section 4,' thence run S 07 '27'Or w. along the west line of the Northeast 7/4 of said Section 4, a distance of 2790.77 feet for the POINT OF BEGINNING; thence, departing said west line, run S 88'32'53~ E. a distance of 624.53 feet to a point on the westerly right-of-way line of Clarke Rood, os described and recorded in Official Records Book 4352, Page 7655, Public Records of Orange County, Florida; thence run S 0710'45- W. along soid westerly right-of-way line, a distance of 20.00 feet; thence, departing said westerly right-Of-way line, run N 88'32'53" W. a distance of 624.63 feet to a point on the aforesaid west line of the Northeast 7/4 of said Section 4; thence run N 07'27'07" E. along said west line, a distance of 20.00 feet to the POINT OF BEGINNING. EXHIBIT I-A- THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Dorothy E Watson, Esq. FOLEY & LARDNER LLP 111 North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 WATER CAPITAL CHARGE CREDIT AGREEMENT THIS WATER CAPITAL CHARGE CREDIT AGREEMENT (this "Agreement") is made and entered into this _ day of June 2009, by and between the CITY OF OCOEE, a Florida municipal corporation, whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (hereinafter referred to as the "City") and the WOODBERY FAMILY, LLP, a Florida limited liability partnership, whose address is 900 Crooked Oak Court, Longwood, Florida 32779 (hereinafter referred to as the "Woodbery"), and: WIT N E SSE T H: WHEREAS, Woodbery is the owner of that certain real property located in Orange County, Florida, as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference (the "Parent Parcel"); WHEREAS, Woodbery has, of even date herewith, granted to the City a perpetual underground water and water reuse line easement over, upon, and across that portion of the Parent Parcel, more particularly described in Exhibit "B" attached hereto and incorporated herein by reference (the "Easement"); and WHEREAS, in partial consideration for Woodbery's grant of the Easement, the City has agreed to provide Woodbery with certain credits to be applied towards future Water Capital Charges, as defined by the Ocoee City Code. NOW, THEREFORE, in consideration of the mutual covenants, promises, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Section 1. The above recitals are true and correct, form a material part of this Agreement, and are incorporated herein by reference. ORLA_1337621.2 I ~IT ---- Section 2. GRANT OF CREDITS. In partial consideration ofWoodbery's agreement to grant the Easement to the City, the City agrees to and does hereby grant to Woodbery credits in the amount of $30,000.00 to be applied towards Water Capital Charges (the "Credits"). Section 3. APPLICATION OF CREDITS. Woodbery, its successors and assigns may apply the Credits towards Water Capital Charges incurred in conjunction with the development of all or any portion of the Parent Parcel. The Credits may only be applied towards Water Capital Charges accruing after the Parent Parcel has been annexed into the City of Ocoee, it being recognized that the current policy of the City requires annexation as a condition for receipt of municipal water service. The Credits may not be transferred or used for the benefit of any property other than the Parent Parcel. Section 4. expire. EXPIRATION OF CREDITS. The Credits shall be perpetual and shall not Section 5. CAP ACITY. W oodbery has not obtained any vested rights with respect to water capacity by virtue of this Agreement. All terms and conditions applicable to other property owners within the City regarding the reservation of capacity for or the provision of potable water shall apply to Woodbery and their successors-in-interest to the Property. Section 6. BINDING AGREEMENT ON SUCCESSORS. This Agreement shall be binding upon and shall inure to the benefit of Woodbery, the City, and their respective successors and shall run with the land. Section 7. RECORDA TION. The parties hereto agree that this Agreement shall be recorded in the Public Records of Orange County, Florida, at the expense of the City. Section 8. APPLICABLE LAW. This Agreement and the provisions contained herein shall be construed, controlled, and interpreted according to the laws ofthe State of Florida. Section 9. SEVERABILITY. If any part of this Agreement is found invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other part of this Agreement if the rights and obligations of the parties contained therein are not materially prejudiced and if the intentions of the parties can continue to be effected. Section 10. AMENDMENT. Amendments to and waivers of the provisions herein shall be made by the parties in writing by formal amendment which shall be recorded in the Public Records of Orange County, Florida at the City's expense. Section 11. COUNTERPARTS. This Agreement and any amendments hereto may be executed in any number of counterparts, each of which shall be deemed an original instrument, but all such counterparts together shall constitute one and the same instrument. Section 12. EFFECTIVE DATE. The Effective Date of this Agreement shall be the date of execution by the City. 2 ORLA_1337621.2 IN WITNESS WHEREOF, the parties hereto have subscribed their names and have caused this Water Capital Charge Credit Agreement to be executed as of the day and year first above written. Signed, sealed and delivered in the presence of: WOODBERY: WOODBERY FAMILY, LLP, a Florida limited liability partnership Print Name By: Name: Title: Print Name STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of June 2009, by . as the of Woodbery Family, LLP. He/she is 0 personally known to me or 0 has produced as identification. WITNESS my hand and official seal in the County and State aforesaid this _ day of 2009. Notary Public Print Name My Commission Expires: 3 ORLA_1337621.2 Signed, sealed and delivered in the presence: Print Name: Print Name: FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. APPROVED AS TO FORM AND LEGALITY THIS DAY OF JUNE 2009. By: Foley & Lardner LLP City Attorney STATE OF FLORIDA COUNTY OF ORANGE CITY: CITY OF OCOEE, a Florida municipal corporation By: Name: S. Scott Vandergrift Title: Mayor Attest: Name: Title: Beth Eikenberry City Clerk [Affix Seal] APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON 2009 UNDER AGENDA ITEM NO. The foregoing instrument was acknowledged before me this day of June 2009, by S. Scott Vandergrift, as Mayor of the City of Ocoee. He is 0 personally known to me or 0 has produced as identification. WITNESS my hand and official seal in the County and State aforesaid this _ day of 2009. ORLA_1337621.2 Notary Public Print Name My Commission Expires: 4 j EBBIT . . , . Orange County Parcel1:Lots Nineteen (19) and Twenty (20) (less 3.5 inches on the south side of Lot 20). Block "1". Fairvilla Park, according to the plat thereofrecorded in Plat Book "L". page 115. of the public records of Orange County, Florida. . Tax 10 No. 1-22-29-2652-10-190 Parcel 2: Wll2 ofSW1I4 ofNE1I4 and SW1I4 ofNW1I4 ofNE1/4 (LESS W 15 Ff) and E1/2 ofNE1I4 ofSW1/4 and W1/2 ofNW1I4 ofSE1I4 and (Less Beg NE cor ofNE 1/4 TH W 2640 Ft S 660 Ft WL to POB Run S 594.44 Ft N 17 Deg W 396.88 Ft N 23 Deg W 234.82 Ft N 89 Deg E 225.66 Ft To POB and LESS Pt Taken For Road RfW Per ORBK4878. Page 1146,1149, Cl94-7651, OfSec 04-22-28 Tax 10 No. 04-22-28-??oo-00-004 Parce13: Lot 10. J C HULL SUBDMSION. according to the plat thereof recorded in Plat Book G. Page 125. of the public records of Orange County. Florida. Tax 10 No. 06-23-30-3780-00100 Parcel 4: An undivided one-half(ll2) interest in: Begin 160 ft. North ofSW comer of Lot 9, EDGEWATERCOURT. as recorded in Plat Book S. page 92; run East 164.61 ft., thence North 124 ft., thence West 164.61 ft. to Edgewater Drive, thence South to point of beginning. being the South 124 ft. oftbat certain tract marked "NOT INCLUDED" on said plat of EDGE WATER COURT. being in the SW1I4 ofNW1/4 ofSW 1/4 of Section 11. Township 22 South, Range 29 East. Tax ID No. 11-22-29-0000-??oo7 Parcel 5: Lot 21. PEMBER TERRACE. as per plat thereof recorded on Plat Book "R". page 69, Public Records of Orange County. Florida. Tax ID No. 06-23-30-6800-00210 Legal Descriptian EXHIBIT j~ A partion of land lying in Section 4, Township 22 South, Range 28 East, Orange County. Florida, being more particularly described os follows: Cammence at the northwest corner of the Northeast 1/4 of said Section 4; thence run S 01'27'07" W. along the west line of the Northeast 1/4 of said Sectian 4, a distance of 2190.71 feet for the POINT OF BEGINNING; thence, departing said west line, run S 88"32'53" E, a distance of 624.53 feet to a point on the westerly right-of-way line of Clarke Raad, as described and recarded in Official Records Book 4352, Page 1655, Public Records of Orange County. Florida; thence run S 01'10'45" W. along said westerly right-of-way line, a distance of 20,00 feet; thence, departing said westerly right-of-way line, run N 88'32'53" W. a distance of 624.63 feet to a point on the aforesaid west line of the Northeast 1/4 of said Section 4; thence run N 01'27'07" E, along said west line, a distance of 20.00 feet to the POINT OF BEGINNING. Containing 0.29 acres, more or less. -UD~point of ~ I' ":: Commencem en t ,(. lil NW corner of "i' ;;; the NE 1/4 of ~ " : Section 4-22-28 } ~ I , " !~( . 0/ f;:.~ ~ I" Q: ..0 ~ - " .~ ~ f\l o 0 _ .Q '0 ~ /. II) Poin t 0 f i:, / Beginning V S BB'32'53" E lao' 1 ~ unplatted 'tl .. 0 ~ lC) t 0 ~ ~ Q:: 8, I ~ $ III '" i' ..lc: :!l ... j ... iii 0 ct 0 PRAIRIE LAKE VILLAGE, PHASE Plot Book J5. Pages 59 and 70 /' N 01 '27'07" E : 20.00' I I ---...- unplatted 100' , , " , , , I I I I , , , . . I .....--...----___~ " : I " " I' " [1--------------------- Majestic Elm Boulevard S 0170'45" W 20.00' NR Not 0 Boundory Survey. Legal description was prepar~ by the Surveyor, O.R.B. - afficiol Records Book Sketch of Description of a SKETCH OF DESCRIPTION ONLY - NOT A SURVEY Utl1ity Easement lying In NO CORNERS WERE SET AND GANUNG-BEl TON ASSOC/A TES. INC. ASSUI./[S NO RESPONSJBIUTY BEYOND ACCfPTED I./ATH[I./ATICAl CLOSURES. ALL B[ARINGS AND DISTANCES SHOIm HEREON ARE SUBJECT TO FIELD VE.'RIFICA TlON. Section 4, Township 22 South, Range 28 East Orange County, Florida PREPARED FDR: Arden Park Ven tures LLC ..os NO. @fB5U G~~~~~.~o~:~ ~~~.~~~~~~A ~:::.~~C. 1 of 1 SURVE:Y I/or VAUO IIImour mc ORIClNN. RAJSCD SCAt AIID SlGNATURC OF A FtDRIDA lJCCl/SllJ SURVEYOR AND MAPPER. mOIls OR DEJI7101/S ro SURVEY MAPS AND OR SUR>O' ":rf:rJJT BY DmlJi mAN mCT ~Clf~&I~::o:"I8f.rTED GBA . ]J94 051J.24 SHEET 4/24/08 OAIr 1275 E. Robinson Street. Orion do, FL 32801 (407) 894-6656 SCALE I" = 150'