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HomeMy WebLinkAboutItem #12 Approval of Chevron Land and Development Company and Eagle Creek Settlement AgreementOcoee florida AGENDA ITEM COVER SHEET Meeting Date: June 4, 2013 Item # l � Reviewed By: Contact Name: Scott A. Cookson, Department Director: City Attorney Contact Number: 407 - 581 -9715 City Manager: .�� Subject: Chevron Land and Development Company (Chevron) and Eagle Creek Settlement Agreement Background Summary: In October 2011, Chevron Land and Development Company ( "Chevron ") applied to the City for a determination that the Eagle Creek project was vested against application of the school concurrency requirements. The City Planner issued a Certificate of Vesting finding that the Eagle Creek project was vested from school concurrency. In December 2011, the Orange County School Board appealed the decision of the City Planner. Chevron and the School Board negotiated the attached Agreement to settle the appeal. The terms of the (settlement) Agreement provide that Chevron will enter into a School Mitigation Agreement, pre -pay school impact fees to the School Board in the estimated amount of $332,456.00 (to be credited towards school impact fees), pay an additional amount of $125,236.00 to the School Board to cover the Proportionate Share Mitigation and pay to the School Board $1,117,452.00 for the Capacity Reservation Fee to be credited towards school impact fees. The School Concurrency Mitigation Agreement will terminate in the event that the City does not approve the Final Subdivision Plan within 180 days of the Effective date unless extended per the terms or in the event Chevron fails to secure a Building Permit for any portion or phase of the development within 3 years of the Final Subdivision Plan Approval. Chevron and the School Board have requested that the City be a party to the Agreement and to the School Concurrency Mitigation Agreement. Issue: 1. Should the City Commission authorize the Mayor to execute the Agreement between the City, Chevron and the School Board? 2. Should the City Commission authorize the Mayor to execute the School Concurrency Mitigation Agreement? Recommendations Yes, the City Commission should authorize the Mayor to execute the Agreement and the School Concurrency Mitigation Agreement. Attachments: 1. Agreement between Chevron Land Development Company, the School Board of Orange County, Florida and the City of Ocoee, Florida 2. School Concurrency Mitigation Agreement between The School Board of Orange County, Florida, the City of Ocoee, Florida and Chevron Land Development Company Financial Impact: None Type of Item: El El El X El Public Hearing Ordinance First Reading Ordinance First Reading Resolution Commission Approval Discussion & Direction For Clerk's Dept Use X Consent Agenda ❑ Public Hearing ❑ Regular Agenda X Original Document/Contract Attached for Execution by City Clerk ❑ Original Document/Contract Held by Department for Execution Reviewed by City Attorney ❑ N/A Reviewed by Finance Dept. ❑ N/A Reviewed by ( ) ❑ N/A D MEMORANDUM CLIENT - MATTER NUMBER 06286 -0001 TO: The Honorable Mayor and City Commissioners FROM: Scott A. Cookson, City Attorney DATE: May 29, 2013 RE: Chevron Land Development Company /Orange County School Board Appeal Settlement Staff Report ISSUE 1. Should the City Commission authorize the Mayor to execute the Agreement between the City, Chevron and the School Board? 2. Should the City Commission authorize the Mayor to execute the School Concurrency Mitigation Agreement? BACKGROUND /DISCUSSION In October 2011, Chevron Land and Development Company ( "Chevron ") applied to the City for a determination that the Eagle Creek project was vested against application of the school concurrency requirements. The City Planner issued a Certificate of Vesting finding that the Eagle Creek project was vested from school concurrency. In December 2011, the Orange County School Board appealed the decision of the City Planner. Chevron and the School Board negotiated the attached Agreement to settle the appeal. The terms of the (settlement) Agreement provide that Chevron will enter into a School Mitigation Agreement, pre -pay school impact fees to the School Board in the estimated amount of $332,456.00 (to be credited towards school impact fees), pay an additional amount of $125,236.00 to the School Board to cover the Proportionate Share Mitigation and pay to the School Board $1,117,452.00 for the Capacity Reservation Fee to be credited towards school impact fees. The School Concurrency Mitigation Agreement will terminate in the event that the City does not approve the Final Subdivision Plan within 180 days of the Effective date unless extended per the terms or in the event Chevron fails to secure a Building Permit for any portion or phase of the development within 3 years of the Final Subdivision Plan Approval. Chevron and the School Board have requested that the City be a party to the Agreement and to the School Concurrency Mitigation Agreement. AGREEMENT THIS AGREEMENT ( "Agreement ") is executed effective as of this day of , 2013, by and between THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA, a body corporate and political subdivision of the State of Florida ("School Board "), the CITY OF OCOEE, FLORIDA, a municipal corporation of the State of Florida, hereinafter referred to as "City" and CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation ("Chevron "). RECITALS WHEREAS, Chevron owns real property located in the City of Ocoee, Florida (the "City ") that is the subject matter of this dispute (the "Property "); WHEREAS, the School Board is the governing board of the Orange County Public Schools and is responsible for the public school system in Orange County, Florida; WHEREAS, on October 21, 2008, the City approved the rezoning of the Property to a Planned Unit Development; WHEREAS, the City and the School Board are parties to that certain Interlocal Agreement for Public School Facility Planning and Concurrency Implementation entered into by and between the School Board, the Board of County Commissioners, the City and the other municipalities identified therein, as the same has been subsequently amended and restated and is now titled, "First Amended and Restated Interlocal Agreement for Public School Facility Planning and Implementation of School Concurrency" (the " Interlocal Agreement "). ORLDOCS 12812846 3 1 WHEREAS, the Planned Unit Development zoning permits a 254 residential unit development project on the Property, Eagle Creek of Ocoee (the "Eagle Creek Project "); WHEREAS, on October 4, 2011, in accordance with the requirements of Section 1- 5.1.C(l)(b) of the Ocoee Land Development Code (the "Code ") and Sections 16.2(d) and 16.2(1) (now renumbered as Sections 18.2(d) and 18.2(1)) of the Interlocal Agreement, Chevron applied to the City for a determination that the Eagle Creek Project is vested against application of the school concurrency requirements adopted by the City on October 21, 2008, and which became effective on January 23, 2009 (the "Application "); WHEREAS, the Application requested the City determine that the Eagle Creek Project meets the requirements of Section 1- 5.1.C(l)(b) of the Code, as well as Sections 16.2(d) and 16.2(1) (now renumbered as Sections 18.2(d) and 18.2(l)) of the Interlocal Agreement; WHEREAS, on December 2, 2011, the City Planner issued Certificate of Vesting — School Concurrency, No. CV- 11 -01, finding that the Eagle Creek Project is vested from school concurrency; WHEREAS, on December 9, 2011, the School Board, in accordance with Code §1- 5.1.F(3) and Section 16.2(1) (now renumbered as 18.2(1)) of the Interlocal Agreement, timely appealed the City Planner's school concurrency vesting determination (the "Appeal "); ORLDOCS 12812846 3 2 WHEREAS, the School Board and Chevron wish to provide for an uncontested and stipulated resolution of the aforementioned Appeal in order to obviate the need for extensive protracted and expensive Appeal proceedings and to memorialize by this Agreement the material terms and conditions of such resolution; and WHEREAS, in settlement of the Appeal, Chevron shall provide Proportionate Share Mitigation (as defined in the Interlocal Agreement) to mitigate for the impacts of the Eagle Creek Project on the public school facilities in School Concurrency Service Area U. NOW, THEREFORE, in consideration of the promises and mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby irrevocably acknowledged by all parties hereto, the School Board and Chevron hereby agree as follows: I. Recitals The foregoing recitals are hereby true and correct and are hereby incorporated into this Agreement. 2. Terms of Settlement Chevron agrees to the following settlement terms: a. Chevron shall enter into that certain School Concurrency Mitigation Agreement in form and content attached hereto as Exhibit "A" and incorporate herein by this reference (the "Mitigation Agreement ") and to timely satisfy and perform all duties and obligations of Chevron under the Mitigation Agreement as and when required by the Mitigation Agreement. The Mitigation Agreement will be recorded in the Public Records of Orange County, Florida and run with title to the property comprising the Eagle Creek Project. Simultaneously ORLDOCS 12812846 3 3 with Chevron's execution and delivery of two (2) originals of this Agreement to the School Board's counsel, Chevron shall execute and deliver to the School Board's counsel three (3) originals of the Mitigation Agreement. b. Chevron agrees to the provide the following Proportionate Share Mitigation to mitigate for the impacts of the Eagle Creek Project on the public school facilities in School Concurrency Service Area U, as more fully set forth in the Mitigation Agreement: i. Pre - payment of school impact fees for the failed units of the Eagle Creek Project as set forth in Article V of Chapter 23 of the Orange County Code in the amounts as specified in the ordinance shall be due and payable to the School Board at the time of Final Subdivision Plan approval by the City. As of the date of this Agreement, the total estimated school impact fees for such residential units is THREE HUNDRED THIRTY -TWO THOUSAND FOUR HUNDRED FIFTY -SIX AND 00 /100 DOLLARS ($332,456.00), which shall be credited towards school impact fees as provided in Section 17.3 (now renumbered as Section 19.3) of the Interlocal Agreement. Such payment shall be due and payable to the School Board at the time the Final Subdivision Plan is approved by the City. In the event such school impact fees increase, Chevron shall be obligated to pay any additional sums at the time building permits for such residential units are applied for by Chevron. ii. Payment of an additional ONE HUNDRED TWENTY FIVE THOUSAND TWO HUNDRED THIRTY SIX AND 00 /100 ORLDOCS 12812846 3 4 DOLLARS ($125,236.00) to cover a portion of the Proportionate Share Mitigation associated with providing the necessary capacity that exceeds the estimated impact fees. Such additional payment shall be due and payable to the School Board at the time the Final Subdivision Plan is approved by the City. iii. Payment of the Capacity Reservation Fee equal to ONE MILLION ONE HUNDRED SEVENTEEN THOUSAND FOUR HUNDRED FIFTY -TWO AND 00 /100 DOLLARS ($1,117,452.00) which shall be credited towards school impact fees as provided in Section 16.7 (now renumbered as Section 18.7) of the Interlocal Agreement, and shall be paid in installments, as more fully set forth in Section 9 of the Mitigation Agreement. 3. Mutual Waiver and General Release Conditioned on the parties performing their obligations under this Agreement and the Mitigation Agreement, the parties do hereby, for themselves and /or for their respective predecessors, as well as their respective past, present, and future insurers, agents, attorneys, successors, representatives, assigns, heirs, personal representatives, and any other persons claiming by or through either of the parties hereby release, waive, and forever discharge each other and each of their respective predecessors, as well as their respective past, present, and future insurers, agents, attorneys, successors, representatives, assigns, heirs, personal representatives, and any other persons claiming by or through them from any and all actions, claims and demands arising out of the City's issuance of the school concurrency vesting determination to the Project and any other matter related to the development of the ORLDOCS 12812846 3 5 Project on the Property occurring from the beginning of the world to the date of this Agreement. 4. Dismissal of Appeal Upon receipt by School Board's counsel of two (2) originals of this Agreement and three (3) originals of the Mitigation Agreement executed by Chevron, School Board shall sign an original of the Voluntary Dismissal with Prejudice of the Appeal in the form attached hereto as Exhibit "B" and incorporated herein by this reference and promptly file the fully- executed dismissal of the appeal with the City. Each party shall be responsible for and bear its own attorneys' fees and costs occurred in the prosecution of the Appeal. 5. Entire Agreement /Amendments a. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and cancels any and all prior and contemporaneous discussions, negotiations, arrangements, agreements, and understanding between the parties to this Agreement with respect to the subject matter hereof, and b. This Agreement may not be modified or otherwise amended except by a written instrument that expressly refers to this Agreement and is executed by the party to this Agreement against whom such amendment is sought to be enforced; and C. No party or other person has made any oral or written representation, other than those explicitly set forth in this Agreement, upon which any party is relying in making their or his decision to enter into this Agreement. 6. Advice of Counsel All parties acknowledge that they have entered into this agreement voluntarily and with full knowledge and understanding of its terms. All ORLDOCS 12812846 3 6 parties further represent they have had a reasonable time period within which to consider all terms of this Agreement, and that upon advice of counsel of their choosing they have read and fully understand the terms of this Agreement and agree to be bound hereby. 7. Successors and Assigns This Agreement shall be binding upon all parties hereto and shall inure to the benefit of, and be binding upon, their heirs, administrators, representatives, executors, successors, beneficiaries, assigns, agents, insurers, and any other persons acting by, through, under or in concert with any of the parties hereto. 8. Governing Law All parties agree that: a. The Agreement is being consummated in Florida and the performance of all obligations under this Agreement shall be deemed to take place in Florida; and b. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to Florida choice of law rules; and C. Any judicial proceeding of any nature brought by any party against any other party hereto to enforce any right or obligation under this Agreement, or arising out of any matter pertaining to this Agreement, shall be submitted exclusively to the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, and all parties hereto irrevocably consent and submit to the personal jurisdiction of such court in connection with any such judicial proceeding. 9. Attorney's Fees Each party agrees to bear its own attorney's fees and costs incurred in connection with this matter. In the event of any litigation, including any appeals, arising from or relating to the enforcement, scope, meaning, interpretation, ORLDOCS 12812846 3 7 performance or non - performance of or under this Agreement, the prevailing party therein shall be entitled to recover from the non - prevailing party all reasonable attorney's fees, paralegal fees and costs incurred in connection therewith. 10. Execution of Documents This Agreement may be executed in identical counterparts, which, when taken together, shall constitute the single and same agreement concerning this subject matter. 11. Warranty of Capacity to Execute Agreement Each of the parties represents and warrants that it has all requisite power and exclusive authority to execute and perform its obligations under this Agreement. 12. Implementation Each party hereto agrees, without receipt of further consideration, to execute and deliver any documents and to take any action that may be reasonably required to give effect to the provisions of this Agreement. 13. Waiver or Alteration Any waiver, alteration or modification of any of the provisions of this Agreement shall not be valid or enforceable unless in writing and signed by the parties, it being expressly agreed that this Agreement cannot be modified orally, by course of dealing or by implied agreement. Moreover, any delay by any party in enforcing its rights after a breach by any other party shall not constitute a release or waiver of such breach and shall not be relied upon by the breaching party as a release or waiver of such breach. 14. Gender Whenever used, the singular number shall include the plural, the plural shall include the singular, and the use of any gender shall include the other. 15. Captions and Headings Captions and headings of this Agreement, or any other Agreement to be entered into in connection herewith are for convenience and ORLDOCS 12812846 3 8 reference only and in no way define, describe, extend or limit the scope or intent of such agreement, or the intent of any provision herein. 16. Time Is Of The Essence Time is of the essence with respect to all matters concerning this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. ORLDOCS 12812846 3 9 Signed, sealed and delivered in the Presence of: Print Name: Print Name: Print Name: Print Name: Approved as to form and legality by Shutts & Bowen, LLP, as Counsel to the School Board of Orange County, Florida this day of , 2013 for its exclusive use and reliance. Shutts & Bowen, LLP "SCHOOL BOARD" THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA, a corporate body organized and existing under the constitution and laws of the State of Florida By: Name: Title: Date: , 2013 Attest Barbara M. Jenkins, as its Secretary and Superintendent {Corporate Seal} ORLDOCS 12812846 3 10 STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this day of , 2013, by , as the Chair of The School Board of Orange County, Florida, a corporate body organized and existing under the constitution and laws of the State of Florida. Said person (check one) is personally known to me or produced as identification. Printed Name: Notary Public, State of Florida Commission No. My commission expires: STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this day of , 2013, by Barbara M. Jenkins, as Secretary and Superintendent of The School Board of Orange County, Florida, a corporate body organized and existing under the constitution and laws of the State of Florida. Said person (check one) is personally known to me or produced as identification. Printed Name: Notary Public, State of Florida Commission No. My commission expires: ORLDOCS 12812846 3 11 ATTEST: Beth Eikenberry, City Clerk FOR USE AND RELIANCE BY THE CITY OF OCOEE, FLORIDA APPROVED AS TO FORM AND LEGALITY this day of 2013. SHUFFIELD LOWMAN & WILSON. P.A. By: City Attorney STATE OF FLORIDA ) COUNTY OF ORANGE ) CITY OF OCOEE C S. Scott Vandergrift, Mayor APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON 1 2013 UNDER AGENDA ITEM NO. I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared S. SCOTT VANDERGRIFT and , personally known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE and that they severally acknowledged executing the same freely and voluntarily under authority duly vested in them by said municipality. They are personally known to me. WITNESS my hand and official seal in the County and State last aforesaid this day of , 2013. Signature of Notary Public Printed Name of Notary Public Notary Public, State of Florida Commission No.: My Commission Expires: ORLDOCS 12812546 3 12 WITNESSES: STATE OF ) SS: COUNTY OF ) "CHEVRON" CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation By: Print Name: Title: Before me on , 2013, personally appeared as of CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation who is personally known to me or has produced as identification, and who acknowledged that he /she signed the above instrument as his /her free and voluntary act. Printed Name: Notary Public, State of Florida Commission No. My commission expires: ORLDOCS 12812846 3 13 EXHIBIT "A" Mitigation Agreement ORLDOCS 12812846 3 14 EXHIBIT "B" Voluntary Dismissal With Prejudice ORLDOCS 12812846 3 15 BEFORE THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA SCHOOL BOARD OF ORANGE COUNTY, FLORIDA, Appellant, vs. Appeal No. 2011 -01 CHEVRON LAND AND DEVELOPMENT COMPANY, Appellee. I NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE Appellant, THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA, by and through its undersigned counsel, hereby gives notice of the dismissal of the entire above - styled action with prejudice. DATED this day of , 2013 Respectfully submitted, SHUTTS & BOWEN LLP Scott A. Glass, B.C.S. Fla. Bar No. 91 1364 Judi S. James, Esq. Fla. Bar No. 120359 300 S. Orange Ave., Ste. 1000 Orlando, FL 32801 Ph. 407 - 423 -3200 Fax 407 - 425 -8316 ORLDOCS 12673794 1 35980.0001 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Voluntary Dismissal With Prejudice has been furnished, via hand - delivery, this day of , 2013 to the following: R. Paul Rocker, The Tate Law Firm, PLLC, 1301 West Colonial Drive, Orlando, Florida 32804, Attorney for Appellee, and to John R. Hamilton, Foley & Lardner LLP, 1 11 North Orange Ave., Ste. 1800, Orlando, Florida 32801, Attorney for City of Ocoee, Florida. Scott A. Glass ORLDOCS 12673794 1 35980.0001 Prepared by: Juli Simas James, Fsquire Shutts & Bowen 1.I.1 300 S. Orange Ave. Suite 1000 Orlando, Florida 32801 Alter recording return to: Tyrone K. Smith Orange County Public Schools 445 West Amelia Street Orlando, Florida 32801 -1129 --------------- - - - - -- [ SPACE ABOVE THIS LINE FOR RECORDING DATA] ------------------ - - - - -- SCHOOL CONCURRENCY MITIGATION AGREEMENT OCE -10 -001 Project Name: Eagle Creek of Ocoee Parcel ID#: 07- 22 -28- 0000 -00 -001 THIS SCHOOL CONCURRENCY MITIGATION AGREEMENT ("Agreement "), is entered into by and between THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA a body corporate and political subdivision of the State of Florida, hereinafter referred to as "School Board ", the CITY OF OCOEE, FLORIDA, a municipal corporation of the State of Florida, hereinafter referred to as "City' and CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation, whose address is, 6001 Bollinger Canyon Road, San Ramon, California 94583, hereinafter referred to as "Applicant ", together referred to as the "Parties ". RECITALS: WHEREAS, the School Board, Orange County, and the municipalities within Orange County have entered into that certain "Amended Interlocal Agreement For Public School Facility Planning and Implementation of Concurrency" (the "Interlocal Agreement "), and WHEREAS, pursuant to Section 16.6 of the Interlocal Agreement, an Applicant submitting a School Coricurrency Determination Application for approval of a site plan or preliminary plat or the functional equivalent that will generate additional students in a School Concurrency Service Area in which there is insufficient student capacity available to accommodate the anticipated additional students must enter into a Concurrency mitigation agreement and provide Proportionate Share Mitigation to prevent school overcrowding attributable to the anticipated additional students generated by the development as specified in the Florida Statutes; and WHEREAS, the functional equivalent of a site plan or preliminary plat in the City is a final site plan or final subdivision plan; and WHEREAS, an Applicant must submit the School Concurrency Determination Application along with a Development Analysis which identifies the proposed location of the Residential Development, the number of Residential Units that will be created, a phasing ORLDOCS 12812880 4 schedule (if applicable), a map demonstrating land use and zoning classifications for the Applicant's property, as well as all other information required pursuant to Section 16.5 of the Interlocal Agreement, to the City; and WHEREAS, Applicant is the fee simple owner of that certain tract of land located in Ocoee, Florida, as more particularly described on Exhibit "A" attached hereto and incorporated herein by reference (the "Property "), which such Property location is further illustrated by a map attached hereto as Exhibit "B" and incorporated herein by reference; and WHEREAS, the Applicant has submitted a School Concurrency Determination Application and Development Analysis to the City in connection with a proposal to obtain approval for a site plan and related matters to develop approximately 254 new multi - family residential dwelling units on the Property (the "Project "), which such School Concurrency Determination Application and Development Analysis have been forwarded to the School Board; and WHEREAS, the School Board has reviewed and evaluated the Applicant's School Concurrency Determination Application and Development Analysis as required by Section 16.6 of the Interlocal Agreement, and has determined that based on the current adopted Level of Service standards within the School Concurrency Service Areas within which the Property is located and the anticipated New School Capacity that will be available in the first three (3) years of the current District Facilities Work Program to serve the proposed Residential Development, there is insufficient middle school Net School Capacity to serve the new multi - family residential dwelling units within the Concurrency Service Areas for the Residential Development or in an adjacent Concurrency Service Areas pursuant to an Adjacency Review; and WHEREAS, approving the School Concurrency Determination Application without requiring Proportionate Share Mitigation for the impacts of the proposed new units will either create or worsen school overcrowding applicable to the Concurrency Service Areas; and WHEREAS, the Applicant has agreed to enter into this Agreement with the School Board and City to provide Proportionate Share Mitigation proportionate to the demand for Public School Facilities to be created by the School Concurrency Determination Application, as more particularly set forth herein. NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows: 1. INCORPORATION OF RECITALS. The foregoing recitals are true and correct and are hereby incorporated into this Agreement by this reference as if fully set forth herein. 2. DEFINITION OF MATERIAL TERMS. Any capitalized terms used herein but not defined shall have the meaning attributed to such term in the Interlocal Agreement. 3. LEGALLY BINDING COMMITMENT. This Agreement constitutes a legally binding commitment by the Applicant to mitigate for the impacts of the new residential dwelling units for which the Applicant is seeking approval pursuant to the School Concurrency Determination Application and is intended to satisfy the requirements of applicable law for such ORLDOCS 12812880 4 2 mitigation. This Agreement constitutes a legally binding commitment of the School Board and obligates the School Board to support Applicants' School Concurrency Determination Application and a legally binding commitment of the City. 4. PROPORTIONATE SHARE MITIGATION. The Parties hereby agree that the Applicant shall provide Proportionate Share Mitigation in order to meet the demand for School Capacity created by the proposed Residential Development and to provide additional capacity for middle school students, as follows, in accordance with Section 17.2 of the Interlocal Agreement: a. Pre - payment of School Impact Fees for the failed units of the proposed Residential Development as set forth in Article V of Chapter 23 of the County Code (the "School Impact Fee Ordinance ") in the amounts as specified in the Ordinance shall be due and payable to the School Board at the time of Final Subdivision Plan approval by the City. As of the date of this Agreement, the total estimated School Impact Fees for such residential units is THREE HUNDRED THIRTY -TWO THOUSAND FOUR HUNDRED FIFTY -SIX AND 00 /100 DOLLARS ($332,456.00). In the event such School Impact Fees increase, Applicant shall be obligated to pay any additional sums at the time building permits for such residential units are applied for by Applicant. b. Payment of an additional ONE HUNDRED TWENTY FIVE THOUSAND TWO HUNDRED THIRTY SIX AND 00 /100 DOLLARS ($125,236.00) to cover a portion of the Proportionate Share Mitigation associated with providing the necessary capacity that exceeds the estimated School Impact Fees (the `'Proportionate Share "). Such additional payment shall be due and payable to the School Board at the time the Final Subdivision Plan is approved by the City. C. Payment of the Capacity Reservation Fee as further described in Paragraph 9 herein below. 5. USE OF PROPORTIONATE SHARE MITIGATION. The School Board shall direct any and all Proportionate Share Mitigation to a School Capacity improvement identified in the capital improvement schedule in the financially feasible five (5) year district work plan of the School Board's District Facilities Work Program which mitigates the impacts from the proposed Residential Development. If such a School Capacity improvement does not exist in the District Facilities Work Program, the School Board may, in its sole discretion, add a School Capacity improvement to mitigate the impacts from the proposed Residential Development, as provided in Section 17.6 of the Interlocal Agreement. 6. IMPACT FEE CREDIT. Any Proportionate Share Mitigation paid pursuant to this Agreement, except for the Proportionate Share paid by the Applicant as noted in 4.b. above, shall be credited toward School Impact Fees as provided in Section 17.3 of the Interlocal Agreement. The School Board shall notify the City of the amount of the above described School Impact Fees for the failed units, valued at THREE HUNDRED THIRTY -TWO THOUSAND FOUR HUNDRED FIFTY -SIX AND 00 /100 DOLLARS ($332,456.00), and shall request a School Impact Fee credit in such amount on behalf of the Applicant upon receipt of the Proportionate Share Mitigation. ORLDOCS 12812880 4 3 7. RELATIONSHIP OF CAPACITY ENHANCEMENT MITIGATION AGREEMENT TO PROPORTIONATE SHARE MITIGATION AGREEMENT. To the extent the Applicant's proposed Residential Development is subject to a Capacity Enhancement Mitigation Agreement, any Capital Contribution paid pursuant to such agreement was applied as a credit to the Proportionate Share Mitigation required for the Residential Development. Such credit was subtracted from the total Proportionate Share Mitigation required pursuant to the Interlocal Agreement and is reflected in the Proportionate Share Mitigation contribution required in Paragraph 4 of this Agreement. 8. ISSUANCE OF SCHOOL CONCURRENCY RECOMMENDATION. Upon final execution of this Agreement by all Parties hereto, the School Board shall render a Preliminary School Concurrency Recommendation documenting that capacity will be available for the proposed Residential Development. This Recommendation may be used by the City to issue a Capacity Encumbrance Letter in accordance with Sections 16.7 of the Interlocal Agreement. 9. CAPACITY RESERVATION FEE. In addition, Applicant shall pay a Capacity Reservation Fee for the project for those units that passed Concurrency Review. The Applicant shall pay a Capacity Reservation Fee equal to ONE MILLION ONE HUNDRED SEVENTEEN THOUSAND FOUR HUNDRED FIFTY -TWO AND 00 /100 DOLLARS ($1,117,452.00), pursuant to the following schedule: a. At the time of Final Subdivision Plan Approval: $ 111,745.00 b. 12 months after Final Subdivision Plan Approval: $ 111,745.00 C. 24 months after Final Subdivision Plan Approval: $ 111,745.00 d. 36 months after Final Subdivision Plan Approval: $ 782,216.00 (remaining balance) Notwithstanding the schedule provided by this Section, Applicant may prepay any or all of the Capacity Reservation Fee in advance. Capacity Reservation Fees paid pursuant to this Agreement shall be credited towards School Impact Fees as provided in Section 18.7 of the Interlocal Agreement. The School Board shall notify the City of the amount of any and all Capacity Reservation Fees paid to the School Board and shall request that each Capacity Reservation installment be credited to the School Impact Fee credit account to be created by the City for this project on behalf of the Applicant upon receipt. 10. TERMINATION. This Agreement shall terminate and Applicant shall forfeit any administrative application fees paid under the following circumstances, unless the City and the School Board agree to an extension of the Certificate of School Concurrency provided to the Applicant: a. The City does not approve the Final Subdivision Plan within a hundred eighty (180) days of the Effective Date of this Agreement. In such event all Proportionate Share Mitigation paid by the Applicant shall be refunded to the Applicant. Notwithstanding the foregoing, in the event the City does not approve the Final Subdivision Plan within said one hundred eighty (180) day period despite the Applicant's good faith and diligently efforts to ORLDOCS 12812880 4 4 obtain such approval, the School Board, upon the written request of the Applicant to be delivered to the School Board no later than fifteen (15) days prior to the expiration of the one hundred eighty (180) day period, shall grant the Applicant an additional one hundred eighty (180) days to obtain Final Subdivision Plan Approval. The School Board hereby authorizes the Superintendent or his /her designee to consent to such extension as described in this Paragraph 10. b. The Applicant fails to proceed in good faith in a diligent and timely manner and secure a Building Permit for any portion or phase of the development within three (3) years of the Final Subdivision Plan approval. In such case, this Agreement shall be terminated and any encumbered capacity shall become unencumbered and unreserved. The Applicant will not be entitled to a refund of any portion of the Proportionate Share paid under this Agreement as noted in 4.b. above, and will only receive a 90% refund of the Capacity Reservation Fee and any pre- paid School Impact Fees. 11. COVENANTS RUNNING WITH THE LAND. This Agreement shall be binding, and shall inure to the benefit of the heirs, legal representatives, successors, and assigns of the parties, and shall be a covenant running with the Property and be binding upon the successors and assigns of the Applicant and upon any person, firm, corporation, or entity who may become the successor in interest to the Property. 12. NOTICES. 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 person(s) hereinafter designated, or (ii) upon deposit of such notice in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the person at the address set forth opposite the party's name below, or to such other address or other person as the party shall have specified by written notice to the other party delivered in accordance herewith: School Board: School Board of Orange County, Florida Attn: Superintendent 445 West Amelia Street Orlando, Florida 32801 With a Copy to: Orange County Public Schools Office of Planning & Governmental Relations 445 West Amelia Street Orlando, Florida 32801 Applicant /Owner: Chevron Land and Development Company Attn: Carla P. Baker 6724 Broken Arrow Trail South Lakeland, Florida 33813 ORLDOCS 12812880 4 With a Copy to: Chevron Corporation Attn: Mia Tindle, Senior Counsel Corporate, Technology and Services Group Law Department 6001 Bollinger Canyon Road, T3136 San Rainon, California 94583 -2324 City: Ocoee City Planner City of Ocoee 150 N. Lakeshore Drive Ocoee, Florida 34761 Scott A. Cookson, Esq. Shuffield Lowman & Wilson P.A. 1000 Legion Place, Suite 1700 Orlando, FL 32801 13. CAPTIONS AND PARAGRAPH HEADINGS. Captions and paragraph headings contained in this Agreement are for convenience and reference only. They in no way define, describe, extend or limit the scope or intent of this Agreement. 14. NO WAIVER. No waiver of any provision of this Agreement shall be effective unless it is in writing, and signed by the party against whom it is asserted. Any such written waiver shall only be applicable to the specific instance to which it relates, and shall not be deemed to be a continuing or future waiver. 15. EXHIBITS. All Exhibits attached hereto are a part of this Agreement and are fully incorporated herein by this reference. 16. AMENDMENTS. No modification, amendment, or alteration in the terms or conditions contained herein shall be binding upon the parties hereto unless in writing and executed by all the Parties to this Agreement. 17. ASSIGNMENT, TRANSFER OF RIGHTS. The Applicant may assign its rights, obligations and responsibilities, including the capacity reserved for the Property, under this Agreement to a third -party purchaser of all or any part of fee simple title to the Property, with the School Board's prior written consent. Applicant shall submit its request for consent of an assignment and /or transfer under the terms of this Paragraph 17, in writing to the School Board prior to such assignment. The School Board shall have fifteen (15) days after receipt of said request to approve or deny the request, which approval shall not be unreasonably withheld. The School Board hereby authorizes the Superintendent or his /her designee to consent to all assignments and /or transfers of rights described in this Paragraph 17. In the event the Superintendent or his /her designee fails to deny or object to an Applicant's request within the time period prescribed herein, such assignment and /or transfer request shall be deemed approved. Such consent may be conditioned upon the receipt by the other parties hereto of the written agreement of the assignee to comply with conditions and procedures to aid in the monitoring and enforcement of the assignee's performance of the Applicant's obligations with regard to Mitigation under this Agreement. Notwithstanding the foregoing, Applicant may assign its ORLDOCS 12812880 4 6 rights, obligations and responsibilities under this Agreement to a subsidiary of the Applicant that has acquired fee simple title to the Property without obtaining the School Board's prior written consent; provided: (i) such assignment is made contemporaneously with the subsidiary becoming the fee simple owner of the Property, (ii) Applicant causes a written instrument to be recorded in the Public Records of Orange County, Florida providing notice of said assignment and evidencing the written agreement of the subsidiary to assume all obligations of the Applicant under the Agreement and to comply with conditions and procedures to aid in the monitoring and enforcement of the subsidiary's performance of the Applicant's obligations with regard to Mitigation under this Agreement and (iii) Applicant provides the School Board with a copy of the recorded notice of assignment within ten (10) days after the date the subsidiary becomes the fee simple owner of the Property. The afordescribed written notice of assignment shall also include the address of the subsidiary for purposes of receiving notices under the Agreement. 18. COUNTERPARTS. This Agreement may be signed in counterparts, each of which may be deemed an original, and all of which together constitute one and the same agreement. 19. RECORDING OF THIS AGREEMENT. The School Board agrees to record this Agreement, at Applicant's expense, within fourteen (14) days after the Effective Date, in the Public Records of Orange County, Florida. 20. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement among the Parties with respect to the subject matter addressed herein, and it supersedes all prior and contemporaneous negotiations, understandings and agreements, written or oral, among the Parties. 21. SEVERABILITY. If any provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable provision will be stricken from the Agreement, and the balance of the Agreement will remain in full force and effect as long as doing so would not affect the overall purpose or intent of the Agreement. 22. APPLICABLE LAW. This Agreement and the provisions contained herein shall be construed, controlled, and interpreted according to the laws of the State of Florida and in accordance with the Orange County Code and venue for any action to enforce the provisions of this Agreement shall be in the Ninth Judicial Circuit Court in and for Orange County, Florida. 23. ATTORNEY'S FEES. In the event any party hereto brings an action or proceeding, including any counterclaim, cross - claim, or third party claim, against any other party hereto arising out of this Agreement, each party in such action or proceeding, including appeals therefrom, shall be responsible for its own attorneys' fees. 24. EFFECTIVE DATE. The effective date of this Agreement shall be the date when the School Board has properly executed this Agreement as determined by the date set forth immediately below their respective signatures (the "Effective Date "). (Signatures on Following Page] ORLDOCS 12812880 4 7 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized representatives on the dates set forth below each signature: Signed, sealed and delivered in the Presence of: "SCHOOL BOARD" THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA, a corporate body organized and existing under the constitution and laws of the State of Florida Print Name: Print Name: Print Name: Barbara M. Jenkins, as its Secretary and Superintendent Print Name: {Corporate Seal{ Approved as to form and legality by the Office of the General Counsel to the School Board of Orange County, Florida this day of 2013 for its exclusive use and reliance. Print Name: By:_ Name: Title: Date: Attest 2013 ORLDOCS 12812880 4 8 STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this day of , 2013, by , as the Chair of The School Board of Orange County, Florida, a corporate body organized and existing under the constitution and laws of the State of Florida. Said person (check one) is personally known to me or produced as identification. STATE OF FLORIDA COUNTY OF ORANGE Printed Name: Notary Public, State of Florida Commission No. My commission expires: The foregoing instrument was acknowledged before me this day of , 2013, by Barbara M. Jenkins, as Secretary and Superintendent of The School Board of Orange County, Florida, a corporate body organized and existing under the constitution and laws of the State of Florida. Said person (check one) is personally known to me or produced _ as identification. Printed Name: Notary Public, State of Florida Commission No. My commission expires: ORLDOCS 12812880 4 9 DEVELOPER/APPLICANT Signed, witnessed, executed and acknowledged on this day of 1 2013. WITNESSES: DEVELOPER /APPLICANT CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation STATE OF ) SS: COUNTY OF ) Before me on 2013, personally appeared as _ of CHEVRON LAND AND DEVELOPMENT COMPANY, a Delaware corporation who is personally known to me or has produced as identification, and who acknowledged that he /she signed the above instrument as his /her free and voluntary act. Notary Public By: Print Name: Title: Name Printed, Typed or Stamped Certificate No. ORLDOCS 12812880 4 10 CITY OF OCOEE ATTEST: IN Beth Eikenberry, City Clerk S. Scott Vandergrift, Mayor FOR USE AND RELIANCE BY THE CITY OF OCOEE, FLORIDA APPROVED AS TO FORM AND LEGALITY this day of , 2013. SHUFFIELD LOWMAN & WILSON, P.A. By: City Attorney STATE OF FLORIDA ) COUNTY OF ORANGE ) APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2013 UNDER AGENDA ITEM NO. I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgements, personally appeared S. SCOTT VANDERGRIFT and , personally known to me to be the Mayor and City Clerk, respectively, of the CITY OF OCOEE and that they severally acknowledged executing the same freely and voluntarily under authority duly vested in them by said municipality. They are personally known to me. WITNESS my hand and official seal in the County and State last aforesaid this day of , 2013. Signature of Notary Public Printed Name of Notary Public Notary Public, State of Florida Commission No.: My Commission Expires: ORLDOCS 12812880 4 Exhibit A — Legal Description FORTHCOMING ORLDOCS 12812880 4 12 Exhibit B — Location Map FORTHCOMING ORLDOCS 12812880 4 13