Loading...
HomeMy WebLinkAboutItem #09 Glad Tidings Church Development Agreement :FOLEY FOLEY & LARDNER LLP ATTORNEYS AT LAW AGENDA ITEM COVER SHEET Meeting Date: June 15, 2010 Item # _ 9 Contact Name: Contact Number: Paul E. Rosenthal, City Attorney Department Director: City Manager: Craig Shadri~ Rob Frank Reviewed By: Subject: Development Agreement with Ocoee Glad Tidings Assembly of God, Inc. District #1, Commissioner Hood Background Summary: Ocoee Glad Tidings Assembly of God has previously obtained a Special Exception Approval which provided for its property to be developed in four phases. Glad Tidings has now applied to the City for a preliminary/final approval of the small scale site plan for the Phase II development. A Traffic Study was performed in connection with the build out of the 4 phases. The Study identified certain roadway deficiencies which need to be addressed by Glad Tidings. As a result, a Development Agreement is required prior to City approval of the small scale site plan for Phase II. Issue: Should the City Commission approve the Development Agreement with Ocoee Glad Tidings Assembly of God, Inc.? Recommendations Staff recommends that the City Commission approve the Development Agreement with Ocoee Glad Tidings Assembly of God, Inc. and authorize execution thereof by the Mayor and City Clerk. [Community Development Director Craig Shadrix concurs in this recommendation.] Attachments: Development Agreement Financial Impact: A_1556199,1 The City will be providing road impact credits for the conveyance of right-of-way as contemplated by the Amended Special Exception Approval. Additionally, the City will participate in funding with road impact fee credits equal to ~ of the cost of an eastbound left turn lane on Fullers Cross Road into the existing entrance to the subject property. Type of Item: D Public Hearing D Ordinance First Reading D Ordinance First Reading D Resolution XXXD Commission Approval D Discussion & Direction For Clerk's Deaf Use: D Consent Agenda D Public Hearing D Regular Agenda o Original Document/Contract Attached for Execution by City Clerk xxD Original Document/Contract Held by Department for Execution Reviewed by City Attorney Paul E. Rosenthal Reviewed by Finance Dept. Reviewed by () o N/A o N/A o N/A A_1556199.1 : FOLEY FOLEY & LARDNER LLP ATTORNEYS AT LAW MEMORANDUM CLIENT. MATTER NUMBER 020377 .0855 TO: The Honorable Mayor and City Commissioners FROM: Paul E. Rosenthal, Esq., City Attorney DATE: June 8, 2010 RE: Development Agreement with Ocoee Glad Tidings Assembly of God, Inc. Staff Report ISSUE Should the City Commission approve the Development Agreement with Ocoee Glad Tidings Assembly of God, Inc.? BACKGROUNDIDISCUSSION Ocoee Glad Tidings Assembly of God has previously obtained a Special Exception Approval which provided for its property to be developed in four phases. Glad Tidings has now applied to the City for a preliminary/final approval of the small scale site plan for the Phase II development. A traffic study was performed in connection with the build out of the 4 phases. The Study identified certain roadway deficiencies which need to be addressed by Glad Tidings. As a result, a Development Agreement is required prior to City approval of the small scale site plan for Phase II. Highlights of the Development Agreement are as follows: 1. Glad Tidings will receive road impact fee credits in the amount of $32,000 for right-of-way previously conveyed to the City. 2. Based on a traffic study, Glad Tidings will make a Traffic Mitigation Payment to the City in the amount of $14,166.50. One-half of the payment is due at the time a building permits is pulled for Phase II and the remainder is due when a building permit is pulled for Phase 4. A_1556199,1 3. Within 3 years from the effective date of the Development Agreement, Glad Tidings will permit and construct an eastbound left turn lane on Fullers Cross Road into the existing entrance to the Property in accordance with plans approved by the City. This turnlane will serve both the Glad Tidings property and adjacent land owned by the City as part of the Crown Point PUD. Since the City will benefit from this improvement in its capacity as an adjacent landowner, road impact fee credits will be provided for Y2 of the cost thereof. 3. The Amended Special Exception Approval provides for an eastbound left turn lane on Fullers Cross Road into a proposed second entrance to the Glad Tidings property. The Traffic Study indicates that this is an operational improvements requirement in connection with the project. Glad Tidings is required, at its expense, to construct this turnlane improvement as part of the Phase IV development. No contribution is being provided by the City or Chevron towards this improvements. There is a possibility that Chevron will redesign its Fullers Cross Road entrance into Eagle Creek of Ocoee. If that is done and approved by the City prior to the development of Phase IV, then the requirements for the eastbound left turn lane on Fullers Cross Road into Glad Tidings will be revisited at that time. A_1556199.1 . THIS INSTRUMENT PREPARED BY Paul E. Rosenthal, Esq. FOLEY & LARDNER LLP III North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 RETURN TO: Beth Eikenberry, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407) 656-2322 For Recording Purposes Only DEVELOPMENT AGREEMENT (Glad Tidings) . THIS DEVELOPMENT AGREEMENT ("this Agreement") is made and entered into as of the _ day of , 2010 by and between OCOEE GLAD TIDINGS ASSEMBL Y OF GOD, INC., a Florida non-profit corporation, whose principal address is 2009 Fullers Cross Road, Ocoee, Florida 34761 (hereinafter referred to as "Glad Tidings") 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 ~ ~ E T H: WHEREAS, Glad Tidings 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, on June 18, 2002 the Ocoee City Commission approved a special exception for the portion of the Property owned by Glad Tidings at that time, which special exception allowed such portion of the Property to be used for both a church and school (the "Original Special Exception Approval"); and WHEREAS, pursuant to the Original Special Exception Approval, Glad Tidings developed a portion of the Property with an approximate 12,000 square foot church and related facilities and parking appurtenant thereto (the "Phase I Development"); and WHEREAS, on July 17,2007, the Ocoee City Commission approved an amendment to . the Original Special Exception Approval, along with a Preliminary Site Plan for Special ORLA_1453378.5 (6/8/10) Exception, which amended special exception added the balance of the Property to the special . exception approval (the "Amended Special Exception Approval"); and WHEREAS, the Amended Special Exception Approval provided for the Property to be developed in four (4) phases with Phase I being the Phase I Development and imposed certain conditions of approval with respect to the development of the future phases; and WHEREAS, the Amended Special Exception Approval contemplated that the Phase II Development would be a 34,000 square foot 2-story building addition and addressed the impacts thereof in the Amended Special Exception Approval; and WHEREAS, Glad Tidings has modified the Phase II Development to provide for a 20,800 square foot I-story building addition and a future 13,200 square foot 2nd-story addition to such building; and WHEREAS, Glad Tidings has applied to the City for approval of a Preliminary/Final Site Plan for the Phase II Development (the "Phase II P/FSP"); and WHEREAS, Glad Tidings and the City desire to execute this Agreement in order to evidence their mutual agreement as to certain matters related to the Phase II Development of the Property and as a condition to the approval of the Phase II PIFSP by the City; and WHEREAS, certain eastbound left tumlane improvements on Fullers Cross Road into the Property are required in connection with the development of the Property, as more fully set forth in this Agreement; and . WHEREAS, Glad Tidings and the City desire to execute this Agreement in order to evidence their mutual agreement as to certain other matters set forth in this Agreement. 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. Recitals: Definitions. The above recitals are true and correct and incorporated herein by this reference. Section 2. Road Impact Fee Credits. Glad Tidings has previously conveyed Tract B to the City (as defined in the Amended Special Exception Approval) and is entitled to receive road impact fee credits for such conveyance of Tract B. Notwithstanding any provision contained in the Amended Special Exception Approval to the contrary, the City and Glad Tidings agree that the value of Tract B for purposes of calculating road impact fee credits is $32,000.00 and the City hereby grants to Glad Tidings road impact fee credits in the amount of $32,000.00 (the "Road Impact Fee Credits"). The Road Impact Fee Credits may only be used towards the payment of road impact fees associated with the development of the Property and are not transferrable to any other property and are not redeemable for cash or other monetary consideration. . ORLA_1453378.5 -2- . . ! . I Section 3. Off-Site Transportation Mitieation. (A) Glad Tidings has submitted to the City a Traffic Impact Analysis prepared by MSCW dated March 25, 2008 (the "Traffic Study"). The Traffic Study is premised upon the Property being developed at buildout of all four phases with the following uses on the Property: church and school purpose with a transportation impact not to exceed 843 daily trips per day, including the transportation impact from the existing Phase I Development (the "Glad Tidings' Proposed Development"). The Traffic Study indicates that, when taking into account the Glad Tidings' Proposed Development certain impacted roadway segments and intersections will not meet their adopted Level of Service (the "Roadway Deficiencies"). In order to address the Roadway Deficiencies, Glad Tidings agrees, at Glad Tidings' expense, to implement a strategy as set forth in Section 3(B) below to accommodate or mitigate the additional traffic created by the Glad Tidings' Proposed Development. (B) In order to comply with requirements of Article IX of the City's Land Development Code entitled "Concurrency" and as a material inducement to the City to approve the Phase II PIFSP and thereafter issue a Final Certificate of Concurrency for the build-out the remaining phases of the development of the Property, Glad Tidings hereby agrees to pay to the City the sum of FOURTEEN THOUSAND ONE HUNDRED SIXTY-SIX AND 50/100 DOLLARS ($14,166.50) (the "Traffic Mitigation Payment"). The Traffic Mitigation Payment will be used by the City exclusively for a portion of the costs associated with the design, engineering, permitting and construction of (i) an eastbound to northbound left turn lane and a southbound to westbound right turn lane at the intersection of Ocoee-Apopka Road and Fullers Cross Road, and (ii) an eastbound to southbound right turn lane at the intersection of Lakewood Avenue and Fullers Cross Road. The Traffic Mitigation Payment shall be paid by Glad Tidings as follows: (i) $7,083.25 at the time of issuance of the first building permit for the Phase II Development, and (ii) $7,083.25 at the time of issuance of the first building permit for the Glad Tidings Phase 4 Development. Notwithstanding the foregoing, any unpaid balance of the Traffic Mitigation Payment shall be due and payable by Glad Tidings to the City three (3) years from the Effective Date. (C) Neither Glad Tidings nor any other person or entity shall be entitled to any road impact fee credits or other compensation of any kind for, on account of, or with respect to the Traffic Mitigation Payment set forth above and Glad Tidings' compliance with the requirements of this section. (D) The parties hereto recognize that the Glad Tidings' Proposed Development has been determined to meet the City's requirements for transportation concurrency based upon the transportation mitigation plan set forth above and that a more intense development of the Property than that that set forth herein could adversely affect the transportation concurrency review undertaken by the City and subject the Property to further transportation concurrency review and require an updated traffic study and potentially require additional transportation mitigation. (E) Glad Tidings shall not be entitled to a reduction of the Traffic Mitigation Payment set forth above or a refund of any previously paid portion of the Traffic Mitigation ORLA_1453378.5 -3- Payment in the event the Property is developed with a lesser intensity or density than set forth in . the Amended Special Exception Approval, it being recognized by Glad Tidings that the City has proceeded with its transportation planning based upon the receipt of the Traffic Mitigation Payment and has made or may make financial commitments based on the receipt of such monies. Section 4. Concurrency. Immediately following the approval of the Phase II PIFSP and this Agreement, Glad Tidings shall apply for a Final Certificate of Concurrency for the development of the Property (all phases) in accordance with the procedures set forth in the City's Land Development Code (the "Final Certificate of Concurrency"). The City agrees to promptly issue the Final Certificate of Concurrency following receipt of such application. The City recognizes that Glad Tidings has previously commenced development and that therefore the development of the Property will not be subject to further concurrency review for transportation under the City's Comprehensive Plan and Land Development Code so long as Glad Tidings makes the Traffic Mitigation Payments and develops the Property in accordance with the provisions of this Agreement. Section 5. Eastbound Left Turn Lane for Glad Tidine:s Phase II Development. (A) The Phase II PIFSP includes plans for an eastbound left turn lane on Fullers Cross Road into the existing entrance to the Property (the "Glad Tidings Turn Lane #1"). The Glad Tidings Turn Lane #1 will also serve in the future certain lands owned by the City located west of and adjacent to the Property. The City has determined that Turn Lane #1 is an operational roadway improvement required in connection with the Glad Tidings' Proposed Development, but that such improvement equally benefits the City and Glad Tidings. . (B) Glad Tidings, at its own cost and expense, has designed and engineered the Glad Tidings Turn Lane #1 as part of the Phase II P/FSP. The cost of the permitting and construction of the Glad Tidings Turn Lane #1 shall be borne equally by Glad Tidings and the City. Within three (3) years from the effective date of this Agreement, Glad Tidings Turn Lane #1 will be permitted and constructed by Glad Tidings. The City will provide Glad Tidings with road impact fee credits equal to the dollar amount of the City's one-half contribution, which road impact fee credits will be granted at the time of commencement of construction of the Glad Tidings Turn Lane #1. Said road impact fee credits may be used only in connection with the development of the Property. Within ninety (90) days following completion of the Glad Tidings Turn Lane #1 and the acceptance thereof by the City, it is agreed that Glad Tidings shall provide such documentation with respect to the Glad Tidings Turn Lane # 1 and the cost thereof as is reasonably requested by the City. (C) Glad Tidings shall be responsible for the timely completion of construction the Glad Tidings Turn Lane #1, all subject to the review, approval and acceptance of the City and other governmental entities having jurisdiction with respect thereto. Prior to commencing work, Glad Tidings shall provide the City with an engineer's estimate of the cost of the permitting and construction of the Glad Tidings Turn Lane #1, such estimate being subject to the review and approval of the City. Any applicable maintenance bonds shall be provided by Glad Tidings and shall be included within the project cost. . ORLA_1453378,5 -4- . . . (D) Except as set forth above, neither Glad Tidings or any other person or entity shall be entitled to any road impact fee credits or other compensation of any kind for, on account of, or with respect to the Glad Tidings Turn Lane #1. Section 6. Eastbound Left Turn Lane for Glad Tidine:s Phase IV Develooment. (A) The Amended Special Exception Approval provides for an eastbound left turn lane on Fullers Cross Road into a proposed second entrance to the Property to be constructed by Glad Tidings as part of the Glad Tidings Phase 4 Development, which would be the easternmost access to the Property (the "Glad Tidings Turn Lane #2"). Based on the Traffic Study, Glad Tidings and the City acknowledge that the Glad Tidings Turn Lane #2 is an operational roadway improvement required in connection with Glad Tidings' Proposed Development. (B) The cost of the design, engineering, permitting and construction of the Glad Tidings Turn Lane #2 shall be borne by Glad Tidings. The City shall not participate in any of the cost of the Glad Tidings Turn Lane #2 and neither Glad Tidings or any other person or entity shall be entitled to any road impact fee credits or other compensation of any kind for, on account of: or with respect to the Glad Tidings Turn Lane #2. (C) Glad Tidings shall be responsible for the timely completion of construction of Glad Tidings Turn Lane #2, all subject to the review, approval and acceptance of the City and other governmental entities having jurisdiction with respect thereto. Any applicable maintenance bonds shall be provided by Glad Tidings and included within the project cost. (D) Unless otherwise indicated, the Glad Tidings Turn Lane #2 shall be completed and, where applicable, accepted by the City or other governmental entity having jurisdiction with respect thereto, prior to issuance of a Certificate of Completion for the subdivision improvements or the issuance of a certificate of occupancy for the Glad Tidings Phase 4 Development. Notice. Any notice delivered with respect to this Agreement shall be in writing and be deemed to be delivered (whether or not actually received) when (1) hand delivered to the other parties at the address appearing on the first page of this Agreement and copies as set forth below, or (ii) when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the parties at the address appearing on the first page of this Agreement and copies as set forth below, (iii) when delivered to a nationally recognized carrier (i.e., Federal Express) for next business day morning delivery addressed to the parties at the address appearing on the first page of this Agreement and copies as set forth below, or such other person or address as the party shall have specified by written notice to the other parties delivered in accordance herewith. Section 7. Covenant Runnine: 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 portions thereof. ORLA_1453378.5 -5- Section 8. Recordation of A2reement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at Glad Tidings' expense, in the Public . Records of Orange County, Florida. Any party hereto will, from time to time upon request of another party, execute and deliver letters affirming the status of this Agreement. Section 9. 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 10. 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 11. A2reement: Amendment. (A) This Agreement, along with the Phase II P/FSP, constitutes the entire agreement between the parties, and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof. To the extent of any conflict with the Amended Special Exception Approval, the provisions of this Agreement shall control; otherwise, the Amended Special Exception Approval shall remain in full force and effect and be unchanged by this Agreement. (B) Amendments to and waivers of the provisions of this Agreement shall be made by the parties only in writing by formal amendment. Section 12. Further Documentation. The parties agree that at any time following a request by any party, each shall execute and deliver to the other parties such further documents and instruments, in form and substance reasonably necessary to confirm and/or effectuate the obligations of the parties hereunder. . Section 13. Specific Performance. Both the City and Glad Tidings shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 14. Attornevs' Fees. In the event that any party finds it necessary to commence an action against another party to enforce any provision of this Agreement or because of a breach by another party of any terms hereof, the prevailing party shall be entitled to recover from the non-prevailing party its reasonable attorneys' fees, paralegal 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 15. 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. Section 16. 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 . ORLA_1453378.5 -6- . . . to explain, modifY, amplifY or aid m the interpretation, construction, or meanmg of the provisions of this Agreement. Section 17. Severability. If any word, 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 so long as the purpose and intent of this Agreement can still be achieved. Section 18. Effective Date. The Effective Date of this Agreement shall be the day this Agreement is last executed by a party hereto and such date shall be inserted on Page 1 of this Agreement. [BALANCE OF PAGE IS INTENTIONALLY BLANK] ORLA_1453378.5 -7- IN WITNESS WHEREOF, Glad Tidings and the City have caused this instrument to be executed by their duly authorized elected officials, andlor officers as of the day and year first . above written. Signed, sealed and delivered in the presence of: OCOEE GLAD TIDINGS ASSEMBLY OF GOD, INC., a Florida non-profit corporation Print Name By: NAME: TITLE: Print Name STATE OF COUNTY OF I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the . State and County aforesaid to take acknowledgments, personally appeared ~ ~ OCOEE GLAD TIDINGS ASSEMBLY OF GOD, INC., a Florida non-profit corporation, who L-] is personally known to me or L-] produced as identification, and that slhe acknowledged executing the same in the presence of two subscribing witnesses, freely and voluntarily, for the uses and purposes therein expressed on behalf of said corporation. WITNESS my hand and official seal in the County and State last aforesaid this day of ,2010. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (ifnot legible on seal): . ORLA_1453378.5 -8- . . . Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA By: S. Scott Vandergrift, Mayor Print Name: Attest: Beth Eikenberry, City Clerk Print Name: (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of ,2010. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2010 UNDER AGENDA ITEM NO. FOLEY & LARDNERLLP By: City Attorney ST A TE 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 ,2010. 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_1453378.5 -9- JOINDER AND CONSENT TO DEVELOPMENT AGREEMENT ( ) . The undersigned hereby certifies that it is the holder of an indenture of mortgage, dated the _ day of , _ and recorded in Official Records Book _, Page , 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 agrees 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: (Print name of Mortgage holder) By: Printed Name: Title: Print Name: Print Name: . STATE OF COUNTY OF The foregoing instrument was acknowledged before me this ,20_, by (Name of Officer) the (Title) of (Name) He/she ~ is personally known to me, or ~ has produced as identification. day of who is 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_1453378.5 -10- - . EXHIBIT" A" The Property . . ORLA_1453378.5 -11-