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HomeMy WebLinkAboutItem #05 Approval of Intent to Annex for Water Service - Mark & Jeffrey Dally center of Good Li ,\~e ~ _ ~~ ~ AGENDA ITEM COVER SHEET Meeting Date: September 21,2010 Item # 5 Contact Name: Contact Number: David A. Wheeler, P.E. 407 -905-3100, ext. 1504 Reviewed By: Department Director: City Manager: Subject: Intent to Annex for Water Service for Mark E. and Jeffrey W. Dally Property at 021 16th Avenue City (Commission District 1 - Commissioner Gary Hood) Background Summary: Misters Dally own the property which is located at 201 16th Avenue and have approached the City for utility service. The property was platted as part of the North Ocoee Addition No. 1 and has two single family residences on the property. Attached please find a copy of the Intent to Annex Agreement. The property is currently within unincorporated Orange County and is not contiguous to the City Limits. However the property is inside the City's JPA boundary, Water & Sewer Territorial Boundary, and City Limits. See attached map from City's GIS Department. Therefore, this is just an Intent to Annex for Water Service at this time. There is a 2" water main along the north side of 16th Avenue that could be tapped for the water services to the property. There are no sewer facilities in the area to even consider sanitary sewer service. There is available capacity in the potable water system for this additional residential customer. The City's requirement about annexation/intent to annex to be able to provide service and the differences between resident service and non-resident service were discussed with Mr. Mark Dally. The City's fee requirements for an Intent to Annex application approval were provided to Mr. Dally. Upon annexation, the utility rates would reduce to city resident charges. Also, should the properties become contiguous to the City Limits and Mr. Dally or the current property owner decides to not proceed with the annexation of the properties, the City has the right to discontinue service until such time as annexation is completed. The Development Review Committee approved the Intent to Annex for the property located at 201 16ili Avenue at a meeting held on September 15,2010. Issue: Approval and execution of the Intent to Annex Agreement with Mark E. and Jeffrey W. Dally to provide water service to their property at 201 16th Avenue. Recommendations The Staff recommends that the Mayor and City Commission approve of this Intent to Annex request for Mark E. and Jeffrey W. Dally at 201 16th Avenue and authorize the Mayor and City Clerk to execute the Annexation Agreement and direct staff to proceed with the process to provide the Dally property with City water service. Attachments: 1) Annexation Agreements for the parcel 2) Maps showing property Financial Impact: There is no financial impact to the City. However, the City will be collecting Capital Charges, Connection fees, and deposits associated with providing water service to the two residences. 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 N/A N/A 2 201 16th Ave within North Dcoee Add. 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Rosenthal, Esq. FOLEY & LARDNER, LLP 111 North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 AFTER RECORDING RETURN TO: City Clerk CITY OF OCOEE 150 North Lakeshore Drive Ocoee, Florida 34761 Tax Parcel Identification Number(s) 08-22-28-5956-02-060 ANNEXATION AGREEMENT [Water Service] THIS ANNEXATION AGREEMENT (the "Agreement") is made and entered into this the ~day of 2010, by and between the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 N. Lakeshore Dr., Ocoee, Florida 34761 (the "City") and Mark Edmond Dally, whose mailing address is 219 Lakeview Circle, Panama City Beach, FL 32413 and Jeffrey Warren Dally, whose mailing address is 201 16th Avenue, Ocoee, FL 34761 (the "Owner"). WIT N E SSE T H: WHEREAS, the Owner owns certain real property located at 201 16th Avenue, Ocoee, FL 34761, Tax Parcel Identification Number 08-22-28-5956-02-060 as more particularly described in Exhibit" A" attached hereto and by this reference made a part hereof (the "Property"); and WHEREAS, the Property is located within the City water territorial areas as set forth in the Territorial Agreements (as defined below); and WHEREAS, the Property is located within the Joint Planning Area as defined in Joint Planning Area Agreement dated February 11, 1994 between the City and Orange County as it may be amended from time to time (the "Joint Planning Area Agreement"), but the Property does not currently meet the statutory requirements for voluntary annexation under the provisions of Section 171.044, Florida Statutes; and WHEREAS, the Owner of the Property has requested, and the City has agreed, subject to the terms, conditions and limitations hereinafter set forth, that the City shall provide water service to the Property; and WHEREAS, in consideration of the City providing water service to the Property, the Owner desires to voluntarily petition the City to annex the Property pursuant to Section 171.044, Florida Statutes; provided, however, at this time the City cannot annex the Property because the Property 006.188179.1 does not currently meet the statutory requirements for voluntary annexation under the provisions of Section 171.044, Florida Statutes; and WHEREAS, the parties acknowledge and agree that this Agreement constitutes a petition for the voluntary annexation of the Property pursuant to Section 171.044, Florida Statutes; and WHEREAS, the Owner agrees that at the time the City makes a determination that the Property meets the statutory requirements for voluntary annexation under the provisions of Section 171.044, Florida Statutes, and upon the request of the City, the Owner shall execute all applications and documents required by the City, pay all applicable fees, costs and expenses, and provide all documentation required by Florida law, including, but not limited to, Section 171.044, Florida Statutes, necessary for the voluntary annexation of the Property. NOW, THEREFORE, in consideration of the premises and the mutual promises and agreements set forth herein and other good and valuable consideration the receipt of which is hereby acknowledged and intending to be legally bound hereby, the parties hereto do hereby agree as follows: SECTION 1. Recitals. The Recitals set forth above are true and correct and by this reference are incorporated herein as part of this Agreement. SECTION 2. Annexation. A. The Owner and the City acknowledge and agree that this Agreement constitutes a petition for the voluntary annexation of the Property pursuant to Section 171.044, Florida Statutes. The Owner and the City further acknowledge and agree that the petition cannot be processed at this time because the Property does not meet the statutory requirements for voluntary annexation under the provisions of Section 171.044, Florida Statutes. B. The City shall have the right, but not the obligation, to process the petition; provided, however, that the petition shall not be processed by the City unless and until a determination is made by the City, in its sole and absolute discretion, that the Property meets the statutory requirements for voluntary annexation under the provisions of Section 171.044, Florida Statutes, or such other provisions of the Florida Statutes as may then be applicable to voluntary annexations. Following such determination by the City and upon the written request of the City, the Owner shall within thirty (30) days of receipt of such written request from the City (i) execute all applications and documents required by the City at the time of such request in order to process the Owner's petition for voluntary annexation including, but not limited to, the Application for Annexation and Initial Rezoning Consistent with the Ocoee Comprehensive Plan and the Annexation and Initial Zoning Hold Harmless Agreement; (ii) pay all applicable fees, costs and expenses associated with the petition for voluntary annexation as required by the City; and (iii) provide all documentation required by Florida law, including, but not limited to, Section 177.044, Florida Statutes, for the voluntary annexation of the Property including, but not limited to, a metes and bounds legal description of the Property. Following the Owner's compliance with the foregoing, the City shall have the right, but not the obligation, to process this petition for voluntary annexation without further action and/or request of the Owner. 006.188179.1 -2- C. In the event the City determines, in its sole and absolute discretion, that the requested annexation is inconsistent with the Ocoee Comprehensive Plan, the Owner must apply for a Comprehensive Plan Amendment and pay the applicable development review fees in connection therewith. In the event the City determines, in its sole and absolute discretion, that a developer agreement is required in connection with the annexation, then the Owner must pay the applicable development review fees in connection therewith. The Owner shall pay such additional development review fees as may be required by the Code of the City of Ocoee in effect at the time of annexation. D. The Owner acknowledges and agrees that this Agreement does not in any way obligate or require the City to annex the Property or grant to the Owner any particular zoning which may be requested in connection with such annexation. E. The Owner acknowledges and agrees that any zoning granted to the Owner in connection with the Property shall be consistent with the terms and conditions of the Joint Planning Agreement as it may be amended from time to time. SECTION 3. Water Service. A. Subject to the terms, conditions and limitations set forth in this Agreement, the City agrees to provide water service to the Property upon compliance by the Owner with all applicable regulations of the City and the payment all fees, costs and expenses associated therewith. The Owner shall execute all developer agreements for water as required by the City in connection with the provision of water service to the Property. B. This Agreement does not in any way reserve any water capacity or guarantee the availability thereof. C. The Owner acknowledges and agrees that for so long as the Property is not located within the corporate limits of the City, the monthly rates and charges for water service as established by the City from time to time shall be charged at the same rate charged to consumers within the corporate limits of the City plus a surcharge equal to twenty percent (20%) of such monthly rates and charges for water service or such other surcharge as the City may impose from time to time. The Owner agrees to pay all such charges for water service and surcharges as required by the City. D. The Owner acknowledges and agrees that the Property is not located in the corporate limits of the City and that water capital charges as established by the City from time to time shall be charged at the same rate to consumers within the corporate limits of the City plus a surcharge equal to nineteen percent (19%) of such water capital charges or such other charges as the City may impose from time to time. The Owner agrees to pay all water capital charges and surcharges as required by the City. SECTION 4. Agreement Runs with the Land. In consideration of the City providing water service to the Property, the Owner and the City acknowledge and agree that this Agreement is irrevocable and, further, this Agreement and all other rights and obligations of the parties 006.188179.1 -3- hereunder are intended to and shall run with the Property, and shall bind, and inure to the benefit of, the parties hereunder and their respective successors in title. SECTION 5. Representations. A. The Owner hereby warrants and represents to the City that the Owner currently owns fee title to the Property and has full power and authority to enter into this Agreement and that the Property is free and clear of all liens and encumbrances [except for the lien of the mortgages referenced in the Joinder, Consent and Subordination attached hereto]. B. The City makes no representations or warranties with regard to this Agreement and reserves the right to process Owner's petition for voluntary annexation in its sole and absolute discretion. SECTION 6. Title Evidence and Survey. A. As a condition precedent to the execution of this Agreement by the City, the Owner shall provide title evidence, in a form and substance satisfactory to the City, showing the Owner as the owner of fee simple title to the Property. Such title evidence shall also show whether the Property is encumbered by a mortgage or otherwise. In the event the Property is encumbered, the Owner shall provide a Joinder, Consent and Subordination of all mortgagees to this Agreement prior to the execution of this Agreement by the City. B. Unless the Property is a platted lot as shown in the title evidence required above, as a condition precedent to the execution of this Agreement by the City, the Owner shall provide a survey in accordance with the minimum technical standards for land surveys set forth in Chapter 61 G 17 -6, Florida Administrative Code. Such survey shall be consistent with the legal description of the Property set forth in Exhibit "A". SECTION 7. Notices. Any notice required to be given hereunder shall be in writing and shall be delivered in person or by certified mail, postage paid, return receipt requested as follows. If such notice is to be given to the City, such shall be given at the address set forth above. If such notice is to be given to the Owner, such shall be given at the address shown in the tax: collector's records for the Tax Parcel Identification Number set forth above. Any notice, direction or other communication delivered or mailed, as directed above shall be deemed to be delivered as of three (3) days after the date of mailing or, if delivered personally, when received. SECTION 8. Defaults and Remedies. IN THE EVENT THE OWNER FAILS TO COMPLY WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND SUCH FAILURE CONTINUES FOR THIRTY (30) DA YS AFTER WRITTEN NOTICE FROM THE CITY, THE CITY MAY DISCONNECT AND TERMINATE ANY WATER SERVICE PROVIDED TO THE PROPERTY. THE OWNER HEREBY CONSENTS TO SUCH DISCONNECTION AND TERMINATION OF WATER SERVICE AND EXPRESSLY WAIVES ANY CLAIMS BASED UPON THE DISCONNECTION AND TERMINA nON OF SUCH WATER SERVICE BY THE CITY. OWNER'S INITIALS: 006.188179.1 -4- SECTION 9. Indemnification. A. The Owner hereby agrees to indemnify and save the City harmless from and against all losses, costs, expenses, claims, damages, judgments, liabilities and causes of action whatsoever (collectively, "Claims") including reasonable attorneys' fees and paralegal fees both at trial and at appellate levels, arising out of or alleged to have arisen out of this Agreement or been occasioned, in whole or in part, by the exercise of the City of its rights granted hereunder. The Owner shall use its best efforts to promptly notify the City in writing of any Claim and shall provide the City with information regarding the Claim as the City may reasonably request, but the failure to give such notice or provide such information shall not diminish the Owner's obligations under this Section. B. No Claim whatsoever shall be made or asserted against the City by the Owner for or on account of anything done or as a result of anything done or omitted to be done in connection with this Agreement. SECTION 10. Recording. The Owner acknowledges and agrees that the City shall record this Agreement in the Public Records of Orange County, Florida, and the Owner agrees to pay all costs associated therewith. SECTION 11. Territorial Agreements. The references herein to the Territorial Agreements refer to (i) the Orange County/City of Ocoee Service Territorial Agreement (Contract No. S-87-8), dated June 8, 1987, as amended by the First Amendment thereto dated February 11, 1994, as it may be amended from time to time, and (ii) the Orange County/City of Ocoee Water Service Territorial Agreement (Contract No. W-88-06), dated November 14, 1988, as amended February 11, 1994, as it may be amended from time to time. SECTION 12. Real Property Taxes for Conveyance. In the event of any conveyance of real property by the Owner to the City, real property taxes in connection with the conveyance shall be prorated as of the day before the acceptance of the conveyance by the City and the prorated amount shall be paid by the Owner and shall be escrowed in accordance with the provisions of Section 196.295, Florida Statutes. SECTION 13. Miscellaneous. A. ANY FUTURE OWNERS OF THE PROPERTY SHALL TAKE TITLE TO THE PROPERTY SUBJECT TO THIS AGREEMENT AND BY ACCEPTING A DEED OF CONVEYANCE TO THE PROPERTY, AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. B. The Property shall be deemed a single parcel and any subparcels of the Property which are created by subdivision or by any other means shall be subject to the terms and conditions of this Agreement, subsequent sale and individual ownership notwithstanding. C. This Agreement may not be modified or amended, or any term or provision hereof waived or discharged except in writing, in recordable form, signed by the parties hereto, or their respective successors and assigns. Any such modification or amendment shall not be effective until recorded in the Public Records of Orange County, Florida. 006.188179.1 -5- D. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Florida. E. All of the terms of this Agreement, whether so expressed or not, shall be binding upon the respective successors, assigns and legal representatives of the parties hereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns and legal representatives. F. The headings of this Agreement are for reference only and shall not limit or otherwise affect the meaning thereof. G. In the event the either party institutes a legal proceeding against the other party, to enforce the terms of this Agreement or for breach of any of the terms, conditions or covenants of this Agreement, the prevailing party shall be entitled to recover from the other party its reasonable attorney's fees, paralegal fees and costs, both at the trial and appellate levels. H. In the event a third party institutes a legal proceeding against the City and/or the Owner, regarding the enforceability of this Agreement or any other matters arising out of or related to this Agreement, the annexation of the Property or the provision of water service, then in such event the Owner shall pay all costs, fees, charges, and expenses of the City relative thereto, including but not limited to attorney's fees and paralegal fees at both the trial and appellate levels. 1. In addition to each and every remedy now or hereafter existing at law or in equity, the parties hereto expressly agree that City shall have the right to enforce this Agreement by an action for specific performance. J. As from time to time requested by the City, the Owner agrees to execute such additional documents as may be necessary in order to effectuate the provisions of this Agreement. K. This Agreement embodies and constitutes the entire understandings of the parties with respect to the subject matter hereof and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Agreement. L. The attached Exhibits are part of this Agreement as though fully set forth in this Agreement. 006.188179.1 -6- IN WITNESS WHEREOF, the City has caused this Agreement to be executed as of the day and year first written above. Signed, sealed and delivered in the presence of: Signature Print/Type Name Signature Print/Type Name FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. APPROVED AS TO FORM AND LEGALITY this _ day of ,2010. FOLEY & LARDNER, LLP By: City Attorney "CITY" CITY OF OCOEE, a Florida municipal corporation By: S. Scott Vandergrift, Mayor Attest: Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON ,2010. UNDER AGENDA ITEM NO. STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid to take acknowledgements, 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, a Florida municipal corporation, and that they severally acknowledged executing the same on behalf of said municipality 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. 006.188179.1 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): -7- [EXECUTION PAGE FOR INDIVIDUAL OWNER] IN WITNESS WHEREOF, the Owner has caused this Agreement to be duly executed the day of ,2010. Signed, sealed and delivered in the presence of: "OWNER" Signature Printffype Name Signature Printffype 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 acknowledgements, personally appeared , who [ ] is personally known to me or [ ] produced as identification, and that _he acknowledged executing the foregoing instrument for the purposes and uses therein described. 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): 006.188179.1 -8- EXECUTION PAGE FOR INDIVIDUAL OWNER] IN WITNESS WHEREOF, the Owner has caused this Agreement to be duly executed the day of ,2010. Signed, sealed and delivered in the presence of: "OWNER" Signature Printffype Name Signature Printffype 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 acknowledgements, personally appeared , who [ ] is personally known to me or [ ] produced as identification, and that _he acknowledged executing the foregoing instrument for the purposes and uses therein described. 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): 006.188179.1 -9- rJOINDER. CONSENT AND SUBORDINATION The undersigned hereby certifies that is the holder of a mortgage, lien or other encumbrance upon the above described property, and that the undersigned hereby joins in and consents to the foregoing instrument by the owner thereof and agrees that its mortgage, lien or other encumbrance, which is recorded in Official Records Book , Page , in the original sum of $ , of the Public Records of Orange County of Florida, shall be subordinated to the foregoing instrument. Signed, sealed and delivered in the presence of: "OWNER" By: Signature Print Name: PrintIType Name Its: (CORPORATE SEAL) Signature PrintIType Name STATE OF COUNTY OF THIS IS TO CERTIFY, that on this _ day of ,2004, before me, an officer duly authorized to take acknowledgements in the State and County aforesaid, personally appeared as of who [ ] is personally known to me or [ ] produced as identification, and that who acknowledged that _he as the individual described in and who executed the foregoing instrument and acknowledged the execution thereof to be his/her free act and deed as such officer thereunto duly authorized, that the official seal of said corporation is duly affixed thereto. IN WITNESS WHEREOF, I have hereunto set my hand and seal on the above date. NOTARY PUBLIC Name: My Commission expires: 006.188179.1 -10- EXHIBIT" A" LEGAL DESCRIPTION North Ocoee Addition No 1 0/68 Lots 6 to 8 Blk 2 See 2812/949 006.188179.1 -11-