HomeMy WebLinkAboutItem #13 All Sports Memory Care - Development AgreementI I WN I Y %�
AGENDA ITEM STAFF REPORT
Meeting Date: February 18, 2014
Item # 13
Contact Name: J. Antonio Fabre, AICP
Contact Number: 407 - 905 - 3100/1019
Reviewed By:
Department Director:
City Manager:
Subject: All Sports Memory Care /Assisted Living Facility
Development Agreement
Project # LS- 2013 -002
Commission District # 3 — Rusty Johnson
Background /Summary
On December 3, 2013, the All Sports Memory Care /Assisted Living Facility Final /Preliminary Site Plan was
officially approved by the City Commission. The Preliminary /Final Site Plan consisted of a three - story, 112,269
square feet, 120 beds Memory Care /Assisted Living Facility.
Due to future growth in the area (Barkeritaville PUD, etc.), a master utility commitments report (the "Southwest
Utility Project ") was compiled in order to facilitate future utility commitments. This development agreement
captures the All Sports Memory Care owner /developers commitment to participate in the "Southwest Utility
Project ".
Issue:
Should the Honorable Mayor and Commissioners approve the Development Agreement for All Sports Memory
Care /Assisted Living Facility?
Staff Recommendation
Staff recommends that the City Commission approve the Development Agreement for the All Sports Memory
Care /Assisted Living Facility.
Attachments
Development Agreement for All Sports Memory Care /Assisted Living Facility.
Financial Impact
As part of the Southwest Utility Project, the City will receive from the Developer 56.0% (± $198,800.00) of the
estimated construction cost for the potable water cost share and approximately 65.8% (± $86,592.80) for the
wastewater cost share.
Type of Item : ( please mark with an z')
Public Hearing
For Clerk's Dept Use:
Ordinance First Reading
Consent Agenda
Ordinance Second Reading
Public Hearing
Resolution
Regular Agenda
X Commission Approval
Discussion & Direction
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
v
Reviewed by A ) N/A
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
PREPARED BY:
Scott A. Cookson, Esq.
SHUFFIELD, LOWMAN & WILSON, P.A.
1000 Legion Place, Suite 1700
Post Office Box 1010
Orlando, FL 32801
(407) 581 -9800
RETURN TO:
Beth Eikenberry, City Clerk
CITY OF OCOEE
150 N. Lakeshore Drive
Ocoee, FL 34761
(407) 656 -2322
DEVELOPMENT AGREEMENT
(ALL SPORTS MEMORY CARE FACILITY)
THIS DEVELOPMENT AGREEMENT (this "Agreement ") is made and entered into
as of the day of (the "Effective Date ") by and between Vivek Welfare
and Educational Foundation, Inc., a Florida non - profit corporation, whose mailing address is
5200 Vineland Road, Suite 200, Orlando, Florida 32811 (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 (hereinafter referred to as the "City ").
WITNESSETH:
WHEREAS, the Owner owns fee simple title to certain lands located in Orange County,
Florida, and within the corporate limits of the City of Ocoee, Florida, said lands being more
particularly described in Exhibit "A" attached hereto and by this reference made a part hereof
(hereinafter referred to as the "Property "); and
WHEREAS, pursuant to the petition of the Owner, on the Ocoee
City Commission approved the Preliminary /Final Site Plan under the Ocoee Land Development
Code; and
WHEREAS, the Owner and the City desire to execute this Agreement in order to fully
incorporate the commitments of the Owner related to the development of the Property.
NOW, THEREFORE, in consideration of the premises and other good and valuable
considerations exchanged between the parties hereto, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Recitals The above recitals are true and correct and incorporated herein
by this reference.
Section 2. Development of the Property
A. Preliminary/Final Site Plan The Owner hereby agrees to develop
the Property in accordance with that certain Preliminary /Final Site Plan prepared by Landsmart
Consultants, LLC, date stamped as received by the City on October 29, 2013 (hereinafter
referred to as the "Plan "). The Plan is hereby incorporated herein by reference as if fully set
forth herein.
B. Conditions of Approval The Owner hereby agrees that the
Property shall be developed in accordance with and is made subject to those certain Conditions
of Approval attached hereto as Exhibit "B" and by this reference made a part hereof (the
"Conditions of Approval "). The Owner further agrees to comply with all of the terms and
provisions of the Conditions of Approval. The Conditions of Approval attached hereto as
Exhibit "B" are the same as the Conditions of Approval set forth in the Plan.
C. Compliance with Code and Approved Plans Except as otherwise
expressly set forth in this Agreement and the Plan it is agreed that (1) the Owner shall comply
with the zoning and subdivision regulations of the City as set forth in the Ocoee Land
Development Code, as it may from time to time be amended, and (2) all preliminary subdivision
plans, final subdivision plans, and final site plans for the Property or any portion thereof shall
conform to the Ocoee Land Development Code requirements 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.
Section 3. Southwest Utility Project Owner hereby acknowledges that the project
will create certain potable water and wastewater demands on the City's water distribution,
wastewater collection and reuse systems and that certain water main, force main and lift station
improvements (the "Improvements ") will be required in connection with the development and
intended use of the Property and certain other real property in the vicinity. Owner hereby accepts
that the project construction cost share attributable to the Property for potable water distribution
is 56.0% for the three (3) segments of 8" pressure pipe to be installed for an approximate cost to
Owner of One Hundred Ninety Eight Thousand Eight Hundred and No /100s Dollars
($198,800.00) (the "Potable Water Cost Share Amount "). Owner hereby accepts that the
project construction cost share attributable to the Property for wastewater collection and
distribution shall be 65.8% for the 6" pressure pipe segment from Roberson Road /Wesmere
Parkway to the Property for an approximate cost to Owner of Eighty Six Thousand Five Hundred
Ninety Two and 80 /100s Dollars ($86,592.80) (the "Wastewater Cost Share Amount "). The
Potable Water Cost Share Amount and the Wastewater Cost Share Amount shall be paid to the
City on or before The City will design, engineer and permit the
Improvements. Thereafter, Owner shall have the right to obtain a bid for the construction of the
Improvements based upon the City's plans and present the bid to the City for review and, in the
City's sole and absolute discretion, acceptance of the bid, said acceptance not to be unreasonably
denied.
Section 4. 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
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delivered to the other party at the address appearing on the first page of this Agreement, or (ii)
when deposited in the United States Mail, postage prepaid, certified mail, return receipt
requested, addressed to the party at the address appearing on the first page of this Agreement, or
such other person or address as the party shall have specified by written notice to the other party
delivered in accordance herewith.
Section 5. Covenant Running with the Land This Agreement shall run with the
Property and inure to and be for the benefit of the parties hereto and their respective successors
and assigns and any person, firm, corporation, or entity who may become the successor in
interest to the Property or any portion thereof.
Section 6. Recordation of Agreement 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 7. 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 8. Time of the Essence Time is hereby declared of the essence to the
lawful performance of the duties and obligations contained in this Agreement.
Section 9. Agreement; 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 10. Further Documentation The parties agree that at any time following a
request therefor 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 11. 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 12. Attorneys' Fees In the event that either party finds it necessary to
commence an action against the other party to enforce any provision of this Agreement or
because of a breach by the other party of any terms hereof, the prevailing party shall be entitled
to recover from the other party its reasonable attorneys' fees, legal assistants' fees and costs
incurred in connection therewith, at both trial and appellate levels, including bankruptcy
proceedings, without regard to whether any legal proceedings are commenced or whether or not
such action is prosecuted to judgment.
Section 13. 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.
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Section 14. 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 15. Severability If any sentence, phrase, paragraph, provision, or portion of
this Agreement is for any reason held invalid or unconstitutional by any court of competent
jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and
such holding shall not affect the validity of the remaining portion hereof.
Section 16. Effective Date The Effective Date of this Agreement shall be the day
and year first above written.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be
executed by their duly authorized officers as of the day and year first above written.
OWNER:
Signed, sealed and delivered in the Vivek Welfare and Educational Foundation,
presence of: Inc.
Print Name
By:_
Name:
Its:
Print Nam
STATE OF FLORIDA
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
, who [__] is personally known to me or [] produced
as identification, and that
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):
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CITY:
Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA
Print Name:
C
Print Name:
FOR USE AND RELIANCE ONLY BY THE
CITY OF OCOEE, FLORIDA. Approved as
to form and legality this
day of ,
SHUFFIELD, LOWMAN & WILSON, P.A.
IN
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
Attest:
S. Scott Vandergrift, Mayor
Beth Eikenberry, City Clerk
(SEAL)
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD ON
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 acknowledgments, personally appeared S. SCOTT
VANDERGRIFT and BETH EIKENBERRY, personally known to me to be the Mayor and
City Clerk, respectively, of the CITY OF OCOEE, FLORIDA and that they severally
acknowledged executing the same in the presence of two subscribing witnesses, freely and
voluntarily under authority duly vested in them by said municipality.
WITNESS my hand and official seal in the County and State last aforesaid this
day of ,
Signature of Notary
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not Legible on seat):
My Commission Expires (if not legible on seal):
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EXHIBIT " A "
THE PROPERTY
Forthcoming
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EXHIBIT "B"
CONDITIONS OF APPROVAL
The City of Ocoee is subject to the terms, provisions and restrictions of Florida Statutes,
Chapter 163, concerning moratoria on the issuance of building permits under certain
circumstances. The City has no lawful authority to exempt any private entity or itself
from the application of such state legislation and nothing herein shall be construed as
such an exemption.
2. This project shall be developed in one (1) phase.
3. Each phase of the project will stand on its own with respect to public services (sewer,
water, stormwater management, access and other related services).
4. Except as specifically noted on this plan, development of this property shall be consistent
with the requirements of the City of Ocoee Code.
5. Nothing herein shall be construed to waive any provision of the Land Development Code
except to the extent expressly set forth on a waiver table or explicitly set out on the plan.
6. Any damage caused to any public streets as a result of the construction activities related
to the project shall be promptly repaired by the Owner to the applicable governmental
standards at the Owner's sole cost and expense.
7. There shall be no access from the property to any public streets except at the approved
locations shown on the Final Site Plan.
8. All commercial lots will be a minimum of one acre in size.
9. All finished floor elevations will exceed the 100 -year flood plain by a minimum of two
feet.
10. The Developer is to protect and prevent any disturbance, siltation, or other construction
within the wetland areas inside the 100 -year flood elevation. Those areas are to be roped
off during construction and silt fences installed to eliminate any possibility of disturbance
in those areas during construction.
11. All existing structures (including buildings, power lines, existing aerial and utility
facilities) will be removed and /or terminated prior to or during construction of the
development replacing those uses.
12. Development of this property is subject to that certain Development
Agreement dated as recorded in Official Records Book
, Page
13. Intentionally deleted.
14. Existing trees 8' or larger (other than citrus trees or `trash' trees) located along proposed
locations of buffer walls or road right -of -way lines will be preserved if at all possible, the
buffer walls and roads will be designed around those trees to incorporate them into
required landscape buffers and as street trees.
15. The existing grades will be maintained as much as possible to preserve existing protected
trees.
16. Intentionally deleted.
17. In order to ensure that as many existing trees as possible will be preserved, all road
rights -of -way and retention areas will be flagged for review by the city prior to any tree
removal. No clearing permits will be issued for site work or building construction until
the trees to be preserved have been clearly marked with tree protection barriers.
18. No person shall undertake land clearing or the removal of any protected trees without
first obtaining a permit from the Building Department. The removal of protected trees
shall be minimized to the maximum extent possible and no authorization shall be granted
to remove a tree if the Developer has failed to take reasonable measures to preserve the
trees on site.
19. Intentionally deleted.
20. Intentionally deleted.
21. All utilities will be placed around existing protected trees to be preserved.
22. All utilities including electrical, cable, TV, and telephone and including on -site existing
overhead wires shall be placed underground.
23. Intentionally deleted.
24. Intentionally deleted.
25. A perpetual, non - exclusive access easement over all internal roadways and other paved
areas is hereby granted in favor of the City of Ocoee and other applicable authorities for
law enforcement, fire and other emergency services. The City may require that the owner
execute an easement in recordable form with respect to the foregoing.
26. Intentionally deleted.
27. Intentionally deleted.
28. Intentionally deleted.
29. Intentionally deleted.
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30. The access road to the project off of Roberson Road is a private road owned and
maintained by the owner of the Property, with access and utility easements granted to the
City of Ocoee.
31. The Developer shall construct appropriate curbs cuts to enable construction of ramps at
all rights -of -way intersections (and other areas as reasonably required) in order to
accommodate access to sidewalks and streets for persons who are in wheelchairs and
other persons who are physically challenged. All sidewalks shall be constructed at the
time of development of the Property.
32. Parking shall be provided in accordance with the City of Ocoee Land Development Code.
33. All site improvements including entry features, walls, landscaping and sidewalks along
all roads, as well as landscaping around the retention pond tracts and the lift station shall
be completed prior to issuance of the Certificate of Completion for those corresponding
phases.
34. Street lights meeting current code requirements shall be installed by the Developer prior
to issuance of a Certificate of Completion
35. Intentionally deleted.
36. The lift station shall be fenced with a black, vinyl chain link fence with posts and rails
painted black. Such lift station shall also be screened with a hedge -type shrubbery such as
viburnum or ligustrum
37. Each fire hydrant shall be painted OSHA yellow in color and a blue reflective marker
shall be affixed to the street in the center of the lane closest to each hydrant.
38. The stormwater system, including all pipes, inlets, manholes and structures, together with
the retention ponds, will be owned, operated and maintained by the owner of the
Property.
39. Intentionally deleted.
40. All stormwater management ponds will be unfenced with maximum 5:1 side slopes into
the pond.
41. Intentionally deleted.
42. Intentionally deleted.
43. The Developer shall convey a twenty (20) foot tract of land to the City of Ocoee along
the south property line of the subject property adjacent to the north side of Roberson
Road R -O -W, as reflected on the Preliminary /Final Site Plan date stamped as received by
the City on October 29, 2013, to the City within 60 days from approval of the Final Site
Plan, but in no event later than the issuance of the infrastructure and /or building permits
for the subject project. The conveyance shall be by special warranty deed free and clear
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of all liens and encumbrances except for those matters acceptable to the City. The form
of the special warranty deed shall be subject to the approval of the City. The Developer
shall, contemporaneously with the conveyance of such property, provide to the City a
current attorney's opinion of title, or a current title commitment to be followed by a
policy of title insurance, evidencing that fee simple title to such property is free and clear
of all liens and encumbrances except for those matters acceptable to the City. The costs
and expenses related to the conveyance of such property, including the cost of title work,
shall be borne solely by the Developer. Real property taxes on such property shall be
prorated as of the day of the City's acceptance of the conveyance of the same, and the
prorated amount of such real property taxes attributable to the Developer shall be paid
and escrowed by such owner in accordance with the provisions of Section 196.295,
Florida Statutes; provided, however, that if the conveyance occurs between November 1
and December 31, then the Developer shall be responsible for real property taxes for the
entire year.
44. The Developer shall convey a Conservation and Drainage Easement to the City within
sixty (60) days from approval of the Final Site Plan, but in no event later than the
issuance of the infrastructure and/or building permits for the subject project. The
Conservation and Drainage Easement shall be in a form that is acceptable to the City of
Ocoee and by the St. Johns River Water Management District ( "SJWMD "). The
Developer shall provide a sketch and legal description for the Conservation and Drainage
Easement at no cost to the City. The sketch and legal description shall reflect that the
portion of the property that is the subject of the Conservation and Drainage as depicted
on the Preliminary /Final Site Plan date stamped as received by the City on October 29,
2013.
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