HomeMy WebLinkAboutResolution 2003-18
RESOLUTION NO. 2003 - 18
\N-:r..TH D~~W ~
ay
ApPL.r.C.AN'f
q... 1~4 2.003
A RESOLUTION OF THE CITY OF OCOEE, FLORIDA,
RELATING TO THE COMPREHENSIVE PLAN
AMENDMENT AND REZONING DEVELOPMENT
AGREEMENT FOR AN APPROXIMATELY 97.93 ACRE
TRACT OF LAND LOCATED AT THE SOUTHEAST
CORNER OF FULLERS CROSS ROAD AND OCOEE
APOPKA ROAD; PROVIDING FOR SEVERABILITY;
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Ocoee desires to enter into a
Development Agreement Regarding Comprehensive Plan Amendment and Rezoning (Faraway
Farms) as attached hereto as Exhibit "A" and by this reference incorporated herein (the
"Development Agreement") with the owner (the "Owner") of an approximately 97.93 acre tract
of land located at the southeast comer of Fullers Cross Road and Ocoee Apopka Road and as
more particularly described in the proposed Development Agreement (the "Property"); and
WHEREAS, the Owner intends to utilize the Property for office and
commercial purposes. Specifically, these purposes include, but are not limited to, professional
offices, stores, and the businesses that accompany such uses, such as restaurants, banks and
other uses; and
WHEREAS, the City has determined that it is in the public interest to address
the issues covered by the Development Agreement in a comprehensive manner, in compliance
with all applicable laws, ordinances, rules and regulations of the City, while allowing the
Owner to proceed in the development of the Property in accordance with existing laws,
ordinances, rules and regulations, subject to the terms hereof, and the City has agreed to enter
into the Development Agreement with the Owner; and
006.307183.3
WHEREAS, the Owner and the City desire to comply with the formal noticing
and public hearing requirements for a property owner initiated zoning ordinance in order to
evidence their mutual agreement as to certain matters related to the development of the
Property; and
WHEREAS, the City Commission has held a first reading on this Resolution
and the Development Agreement at its meeting of September 16, 2003 and held a public
hearing thereon at its meeting of , _ and approved this Resolution following
such hearing.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF OCOEE, FLORIDA, AS FOLLOWS:
SECTION 1. Authority. The City Commission of the City of Ocoee
has the authority to adopt this Resolution pursuant to Article VIII of the Constitution of the
State of Florida and Chapter 166, Florida Statutes.
SECTION 2. Approval and Execution of Development Aweement.
The City Commission hereby approves the Development Agreement attached hereto as Exhibit
" A " and the Mayor and City Clerk are hereby authorized and directed to execute the
Development Agreement on behalf of the City.
SECTION 3.
Severability. If any section, subsection, sentence, clause,
phrase or portion of this Resolution is for any reason held invalid or unconstitutional by any
court of competent jurisdiction, such portion shall be deemed a separate, distinct and
independent provision and such holding shall not affect the validity of the remaining portion
hereto.
006.307183.3
-2-
independent provision and such holding shall not affect the validity of the remaining portion
hereto.
SECTION 4.
Effective Date. This Resolution shall become effective
immediately upon passage and adoption; provided, however, that the effective date of the
Development Agreement shall be in accordance with the terms thereof
PASSED AND ADOPTED this day of
APPROVED:
ATTEST:
CITY OF OCOEE~ FJ.1lRIDA
!
....,.".,.r--) ....,....- -- l /
~~ ::i;ZtT //
S. Scott Vandergrift, Mayor
Jean Grafton, City Clerk
(SEAL)
APPROVED BY THE OCOEE CITY
COMMISSION ON THE ABOVE DATE
UNDER AGENDA ITEM NO.
FOR USE AND RELIANCE ONLY
BY THE CITY OF OCOEE~ FLORIDA;
APPROVED AS TO FORM AND LEGALITY
this _ day of
FOLEY & LARDNER
By:
City Attorney
006.307183.3
-3-
Exhibit "A"
("Development Agreement")
006.307183.3
-4-
EXHIBIT "A" TO RESOLUTION NO. 2003-18
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
PREPARED BY:
Paul E. Rosenthal, Esq.
FOLEY & LARDNER
III North Orange Avenue, Suite 1800
Post Office Box 2193
Orlando, FL 32802-2193
(407) 423-7656
For Recording Purposes Only
RETURN TO:
Jean Grafton, City Clerk
CITY OF OCOEE
150 N. Lakeshore Drive
Ocoee, FL 34761
(407) 656-2322
AGREEMENT REGARDING COMPREHENSIVE
PLAN AMENDMENT AND REZONING
FARAWAY FARMS
THIS AGREEMENT REGARDING COMPREHENSIVE PLAN AMENDMENT
AND REZONING (this "Agreement") is made and entered into as of the _ day of
by and between CHEVRON U.S.A. INC., a Pennsylvania
corporation whose address is
(hereinafter referred to as the "Owner") and the CITY OF OCOEE, a Florida municipal
corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761,
Attention: City Manager (hereinafter referred to as the "City").
W!TNE~~ETH:
WHEREAS, the Owner owns fee simple title to certain lands located in Orange County,
Florida, said lands being more particularly described in Exhibit "A" attached hereto and by this
reference made a part hereof (hereinafter referred to as the "Property"); and
WHEREAS, pursuant to the application of Land Design Innovations, Inc., as authorized
agent of the Owner, on , 20_, the Ocoee City Commission adopted,
subject to the execution of this Agreement, Ordinance No 2003-38 which amended the City's
Comprehensive Plan by changing the land use designation for the Property from Low Density
Residential/Conservation to Commercial/Conservation ("Comprehensive Plan Amendment");
and
006.308742.1
WHEREAS, pursuant to the application of Land Design Innovations, Inc., as authorized
agent of the Owner, on , 20_ the Ocoee City Commission and Orange County,
Florida entered into that certain Amendment to Joint Planning Area Agreement changing the
designation for the Property on the JPA Land Use Map from Low Density
Residential/Conservation to Commercial/Conservation ("JP A Amendment"), with the JP A
Amendment becoming effective only upon adoption of the Comprehensive Plan Amendment and
such Comprehensive Plan Amendment becoming effective; and
WHEREAS, pursuant to the application of Land Design Innovations, as authorized agent
of the Owner, on ,20_ the Ocoee City Commission adopted, subject to the execution
of this Agreement, Ordinance No. 2003-39 which rezoned the Property from R-IAA to C-3
("Rezoning Ordinance"), with the Rezoning Ordinance becoming effective only upon adoption of
the Comprehensive Plan Amendment and such Comprehensive Plan Amendment becoming
effective (the Comprehensive Plan Amendment, the JP A Amendment and the Rezoning
Ordinance being collectively referred to herein as the "Land Use Approvals"); and
WHEREAS, the Owner intends to utilize the Property for office and commercial
purposes; Specifically, these purposes include but are not limited to professional offices, stores,
and the businesses that accompany such uses, such as restaurants, banks and other uses. The
Owner intends to, in this Agreement, restrict the uses that will be allowed at the Property; and
WHEREAS, the City has determined that it is in the public interest to address the issues
covered by this Agreement in a comprehensive manner, in compliance with all applicable laws,
ordinances, rules and regulations of the City, while allowing the Owner to proceed in the
development of the Property in accordance with existing laws, ordinances, rules and regulations,
subject to the terms hereof, and the City has agreed to enter into this Agreement with the Owner;
and
WHEREAS, the Owner and the City desire to execute this Agreement in compliance
with the formal noticing and public hearing requirements for a property owner initiated zoning
ordinance as provided in Section 166.041(3)(a), Florida Statutes, in order to evidence their
mutual agreement as to certain matters related to the development of the Property; and
WHEREAS, the City Commission has held a public hearing on Resolution No. 2003-18,
which Resolution adopts this Agreement, at its meeting of , 20_ and has
approved this Agreement following such hearing.
NOW, THEREFORE, in consideration of the premises and other good and valuable
considerations exchanged between the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1.
by this reference.
Recitals. The above recitals are true and correct and incorporated herein
-2-
006.308742.1
Section 2.
Development of the Propertv.
(A) Except as otherwise expressly set forth in this Agreement and in the Land
Use Approvals, it is agreed that the preliminary subdivision plan, the final subdivision plan and
all preliminary and final site plans for the Property, or any portion thereof, shall conform to the
Ocoee Land Development Code requirements, and all other applicable laws, in effect at the time
of approval of any such plans. In the event of any conflict between the provisions of the Ocoee
Land Development Code, as it may from time to time be amended, and this Agreement, it is
agreed that the provisions of this Agreement shall control.
(B) Neither the granting of the Land Use Approvals nor any other provision
contained herein shall be construed to exempt the Property from compliance with applicable
concurrency management requirements of the Ocoee Land Development Code, as it may from
time to time be amended.
(C) Notwithstanding the Land Use Approvals for the Property, the Owner
hereby covenants and agrees that the Property shall not be developed for any of the following
uses: adult entertainment establishment, automobile parking lots, automobile repair, automobile
sales (new and used), automobile auctions, automotive wrecking/salvage yards, boat sales and
services, borrow pits, bus terminal, equipment sales, mobile home and travel trailer sales, motor
vehicle wholesale, recreational vehicle parks, childcare facilities, golf course/country club,
recreational facility (neighborhood) and truck stops.
Section 3. Development of Resdonal Impact. The City has not required that the
Property be reviewed as a development of regional impact ("DRI") under the provisions of
Section 380.06, Florida Statutes (the "DRI Statute"). Notwithstanding the foregoing, the parties
hereto acknowledge that the City does not have the authority to exempt the Property from review
as a DRI and that the Land Use Approvals do not constitute an exemption from review as a DRl
The Owner covenants and agrees that it will not develop the Property with densities and
intensities in excess of the statutory thresholds which require DRI review unless this Agreement
is specifically amended by the parties to permit the Property's development as a Development of
Regional Impact, which amendment may be granted or denied in the City's sole and absolute
discretion.
Section 4. Traffic. The Owner hereby agrees to limit the traffic generation from the
Property to a maximum of 9,888 average daily trips (the "Maximum Daily Trips"). The
Maximum Daily Trips have been calculated based on a proposed development plan for the
Property consisting of the following uses and intensities:
Retail:
Office:
Hotel:
276,946 square feet
141,342 square feet
100 Rooms
It is agreed that development exchanges between retail, office and hotel uses may occur based on
the development equivalency matrix attached hereto as Exhibit "B" and by this reference made a
-3-
006.308742.1
part hereof (the "Equivalency Matrix"). Notwithstanding the foregoing, the Equivalency Matrix
may not be used in such a manner for development of the Property to exceed the Maximum Daily
Trips of the following maximum uses and intensities:
Retail:
Office:
Hotel:
square feet
square feet
Rooms
Section 5. Adoption of this A2reement. This Agreement has been approved at an
advertised public hearing by the adoption of Resolution No. 2003-18, such hearing and adoption
being in compliance with the hearing and notice requirements for a property owner initiated
zoning ordinance as contained in Section 166.041, Florida Statutes.
Section 6. No Permit. This Agreement is not and shall not be construed as a
development permit, or authorization to commence development, nor shall it relieve the Owner
of the obligations to obtain necessary development permits that are required under applicable law
and under and pursuant to the terms of this Agreement.
Section 7. 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
or sent via airborne delivery with tracking capabilities to the other party at the address appearing
below, or (ii) when deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, addressed to the party at the address appearing below, or such other person or
address as the party shall have specified by written notice to the other party delivered in
accordance herewith. If to the City, deliver to 150 North Lakeshore Drive, Ocoee, Florida 34761,
Attention: City Manager. If to the Owner, deliver to 6724 Broken Arrow Trail, South, Lakeland,
Florida 33813, Attention: Carla Baker, with a copy to Julie Kendig-Schrader, Greenberg, Traurig,
450 South Orange Avenue, 6th Floor, Orlando, Florida 32801.
Section 8. Covenant Runnin2 with the Land. This Agreement shall run with the
Property and inure to and be for the benefit and burden of the parties hereto and their respective
successors and assigns and any person, firm, corporation, or entity who may become the
successor in interest to the Property or any portion thereof.
Section 9. Recordation of A2reement. The parties hereto agree that an executed
original of this Agreement shall be recorded by the City, at the Owner's expense, in the Public
Records of Orange County, Florida. The City will, from time to time upon request of the Owner,
execute and deliver letters affirming the status of this Agreement.
Section 10. 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 11. Time of the Essence. Time is hereby declared of the essence to the
lawful performance of the duties and obligations contained in this Agreement.
-4-
006.308742.1
Section 12. A2reement: Amendment. This Agreement constitutes the entire
agreement between the parties, and supersedes all previous discussions, understandings and
agreements, with respect to the subject matter hereof. Amendments to and waivers of the
provisions of this Agreement shall be made by the parties only in writing by formal amendment.
Section 13. Further Documentation. The parties agree that at any time following a
request by the other party, each shall execute and deliver to the other party such further
documents and instruments, in form and substance reasonably necessary to confirm and/or
effectuate the obligations of either party hereunder.
Section 14. Specific Performance. Both the City and the Owner shall have the right
to enforce the terms and conditions of this Agreement by an action for specific performance.
Section 15. Attornevs' Fees. In the event that the City finds it necessary to
commence an action against the Owner to enforce any provision in this Agreement or because of
a breach by the Owner of any terms hereof, the City, if it prevails in such action, shall be entitled
to recover from the Owner its reasonable attorneys' fees, paralegal fees, and costs incurred in
connection therewith, at both trial and appellate levels, including bankruptcy proceeds, without
regard to whether or not such action is prosecuted to judgment (collectively, "Attorneys Fees");
provided, however, that in the event the Owner asserts the invalidity or unenforceability of
Sections 2(C), 3 and/or 4 hereof in any such proceeding, then in such event the City shall be
entitled to recover from Owner its Attorneys Fees incurred in connection therewith, without
regard to whether or not the City prevails in any such action or proceeding.
Section 16. Indemnification. The Owner hereby agrees to indemnity, defend and
hold the City harmless from and against all losses, costs, expenses, claims, demands, fines,
penalties, damages, judgments, suits, administrative proceedings, 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. The
parties hereto shall use their best efforts to promptly notify each other in writing of any Claims
and shall provide the other party with information regarding the Claims such as the other party
may reasonably request.
Section 17. 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 18. Captions. Captions of the Sections and Subsections of this Agreement
are for convenience and reference only, and the words contained therein shall in no way be held
to explain, modify, amplify or aid in the interpretation, construction, or meaning of the
provisions of this Agreement.
Section 19. 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
-5-
006.308742.1
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 20. Effective Date. The Effective Date of this Agreement shall be the day the
last of the Land Use Approvals becomes final, including the expiration of any applicable appeal
periods and the final conclusion of any appeals or challenges which may be brought to the Land
Use Approvals or this Agreement.
IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be
executed as of the day and year first above written.
Signed, sealed and delivered
in the presence of:
OWNER:
CHEVRON U.S.A. INC.
a Pennsylvania 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
, well known to me to be the of
CHEVRON U.S.A. INC. a Pennsylvania corporation, who [_l is personally known to me, or
[_l produced as identification, and that he/she
acknowledged executing the same in the presence of two subscribing witnesses, freely and
voluntarily, for the uses and purposes therein expressed.
WITNESS my hand and official seal in the County and State last aforesaid this _
day of
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):
-6-
006.308742.1
Signed, sealed and delivered
in the presence of:
Print Name:
Print Name:
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA.
Approved as to form and legality this
_ day of
FOLEY & LARDNER
By:
City Attorney
006.308742.1
CITY:
CITY OF OCOEE, FLORIDA
By:
S. Scott Vandergrift, Mayor
Attest:
Jean Grafton, City Clerk
(SEAL)
APPROVED BY THE OCOEE CITY
COMMISSION AT ITS MEETING HELD
ON UNDER
AGENDA ITEM NO.
-7-
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared S. SCOTT
VANDERGRIFT and JEAN GRAFTON, personally known to me to be the Mayor and City
Clerk, respectively, of the CITY OF OCOEE, FLORIDA and that they severally acknowledged
executing the same in the presence of two subscribing witnesses, freely and voluntarily under
authority duly vested in them by said municipality.
WITNESS my hand and official seal in the County and State last aforesaid this _
day of
Signature of Notary
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal):
My Commission Expires (if not legible on seal):
-8-
006.308742.1
JOINDER AND CONSENT TO 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
Agreement and agrees that the lien of its mortgage described herein above shall be subordinated
to the aforedescribed Agreement.
Signed, sealed and delivered
in the presence of:
(Print name of Mortgage holder)
Print Name:
By:
Printed Name:
Title:
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 [_J is personally known to me, or [_J 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):
-9-
006.308742.1
EXHIBIT "A"
LEGAL DESCRIPTION
That portion of Section 7, Township 22 South, Range 28 East, Orange County, Florida
described as follows:
Commence at the North 1/4 comer of aforesaid Section 7; thence South 01022'35" West along the
West line of the Northeast 1/4 of Section 7 for 30.01 feet to the South line of the North 30.00 feet
of Section 7 and the southerly right-of-way line of Fullers Cross Rood as shown on Orange
County Bond Project Book Number 5, sheets 5 and 6; thence South 89050'45" East along said
South line and southerly right-of-way line for 1280.94 feet to the East line of the West 1/2 of the
Northeast 1/4 of aforesaid Section 7; thence South 0045'45" West along said East line for 2431.28
feet to the East-West center section line; thence South 87015'02" West along said center section
line for 1359.97 feet to the easterly right-of-way line of Ocoee Apopka Road (formerly State
Road No. 437) as shown in Road Plat Book 1, Pages 119 through 126 of the Public Records of
Orange County, Florida; thence along said easterly right-of-way line the following courses; run
North 16017'16" West for 627.90 feet; thence North 16000'04" West for 1000.00 feet; thence
North 15024'56" West for 407.21 feet; thence North 07030'17" West for 548.37 feet to the South
line of the North 30.00 feet of aforesaid Section 7 and the southerly right-of-way line of Fullers
Cross Road; thence South 89057'53" East along said South line and southerly right-of-way line
for 741.45 feet to the Point of Beginning. Containing 97.93 acres, more or less.
-10-
006.308742.1
EXHIBIT "B"
Faraway Farms
Development Equivalency Matrix
Preferred Alternative (With Hotel)
Change From>
Change To
Retail
Office
Hotel
(KSF)
(KSF)
(Rooms)
Hotel
5.2614
Retail
Office
0.1901
Notes:
(I) - Development exchanges based upon ITE 6th Edition Peak Hour Peak Direction Trips as follows:
Retail (ITE Code # 820). 1.21 Exiting Trips per KSF
Office (ITE Code # 710) - I .12 Exiting Trips per KSF
Hotel (ITE Code #310) - 0.23 Entering Trips per Unit
(2) - Example exchanges:
To add 2,000 square feet of RETAIL and change from OFFICE-
2 KSF x 1.0760 = 2.152 = Reduce OFFICE by 2,152 Square Feet
To add 100 HOTEL lUlits and change from RETAIL
100 Units x 0.1901 = 19.01 = Reduce RETAIL by 19,010 Square Feet
-11-
006.308742.1