HomeMy WebLinkAboutItem #06 a. Fountains at Tivoli Place - Amendment to Development AgreementW4
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AGENDA ITEM COVER SHEET
Meeting Date: March 18, 2014
Contact Name:
Contact Number:
Item # (0 a
Reviewed By:
Mich Rumer m � Department Director:
Ext. 1018
City Manager:
Subject: Fountains at Tivoli Place
First Amendment to the Development Agreement
Commission District #3 (Rusty Johnson)
Background Summary:
The Fountains at Tivoli Place project is located between the Florida's Turnpike and Tomyn Boulevard west of
Maguire Road and adjacent to the interchange for SR 429 and the Florida's Turnpike. The total project includes
approximately 12.34 acres of land. The first phase of the project encompasses approximately 6.32 acres of
commercial development and is located along the frontage of Tomyn Boulevard. The first phase of the project
includes the Primrose School parcel and the initial portion of the master infrastructure and the stormwater
retention pond to support the school tract. The remainder of the property is to be commercial development with
multiple buildings and lots.
The proposed amendment to the development agreement will amend conditions of approval numbers: 30, 31,
33 and 40. The changes proposed refer to property owner maintenance responsibilities for the existing
infrastructure to include: stormwater management facilities and water and sewer lines. The proposed changes
require the owner of Lot 2 (Primrose School) to assume maintenance responsibility until Lot 1 develops.
The City has provisions in the Land Development Code which provide sufficient cost reimbursement to the City
if maintenance is not provided per the agreement.
Issue:
Should the Honorable Mayor and City Commission approve the First Amendment to the Development
Agreement for the Fountains at Tivoli Place?
Recommendations:
The Planning and Engineering Departments recommend the approval of the First Amendment to the
Development Agreement.
Attachments:
First Amendment to the Development Agreement
Exhibit "B" Conditions of Approval
Financial Impact:
None
Type of Item: (please mark with an 'V)
Public Hearing
Ordinance First Reading
Ordinance Second Reading
Resolution
X Commission Approval
Discussion & Direction
For Clerk's Dept 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
PREPARED BY AND RETURN TO:
Scott A. Cookson, Esq.
Shuftield, Lowman & Wilson, P.A.
1000 Legion Place, Suite 1700
Orlando, FL 32801
407 -581 -9800
For Recording Purposes Only
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
(Fountains at Highland Park)
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (this
"Amendment ") is made and entered into as of the _ day of , 2014 (the "Effective
an pe een ",�i3,�/EC
y 5 s, 45 y J� whose mailing address is
Y (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 ").
WITNESSETH:
WHEREAS, the City and Owner previously entered into that certain Development
Agreement dated November 18, 2008 as recorded in Official Records Book 9939, Page 3789,
Public Records of Orange County, Florida (the "Development Agreement "); and
WHEREAS, Owner owns fee simple title to the Property defined in the Development
Agreement; and
WHEREAS, Exhibit "B" to the Development Agreement contained a list of Conditions
of Approval relating to the development of the Property, which Conditions of Approval are the
same as the Conditions of Approval made a part of the Land Use Plan, as defined in the
Development Agreement; and
WHEREAS, the Owner wishes to amend certain of the Conditions of Approval; and
WHEREAS, the City has determined that the execution of this Amendment is essential
to the public health, safety and welfare and the ability of the City to plan for the development of
the Property; and
4811- 3960 - 2192.2
WHEREAS, the provisions of Section 4 -5A(5) of Article IV of the Ocoee Land
Development Code requires that the Owner and the City enter into a development agreement
incorporating all plans and conditions of approval by reference; and
WHEREAS, the City and Owner desire to execute this Amendment in order to evidence
their mutual agreement as to certain matters 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: Definitions The above recitals are true and correct and
incorporated herein by this reference. All capitalized terms not otherwise defined herein shall be
as defined or described in the Development Agreement or the Land Use Plan, unless otherwise
indicated.
Section 2. Development of the Property The following Conditions of Approval
referenced in Exhibit "B" to the Development Agreement are hereby amended (strikethrough
text denotes deleted words; double- underlined text denotes added words):
30. One or more property owners associations (the "Association ") will be created
for maintenance and management of all common areas at the time Lot 1 is further
subdivided. Until such time, the owner of Lot 2 will be responsible for all
maintenance and management obligations. All tracts owned by the City shall be
exempt from assessments by or participation in the Association unless otherwise
agreed to by the City Notwithstanding the foregoing the City on its own may elect
to participate on the Board for the Association formed and/or retain voting rights
for tracts owned by the City.
31. All tracts which are to be owned and maintained by the Association shall be
conveyed to the Association by warranty deed at the time Lot l is further
subdivided and the Association has assumed the maintenance and management
obligations for the common areas.
33. The stormwater system, including all pipes, inlets, manholes and structures,
together with Tract A (retention pond), will be owned, by the owner of Lot 1 until
the same are conveyed to the Association. Until Lot 1 is further subdivided, the
maintenance of such improvements will be the responsibility of the owner of Lot
2. Once Lot 1 is further subdivided, such improvements will be conveyed by the
owner of Lotl by bill of sale to the Association at the time the Association
assumes the maintenance and management obligations for the common areas.
44. All legal instruments, including but not limited to, articles of incorporation,
bylaws and declaration of covenants and restrictions for the Association, deeds in
favor of the Association or the City and easement documents shall be provided to
the City for review and approval prior to or at the time Lot 1 is further subdivided.
2
4811- 3960 - 2192.2
In addition, Conditions of Approval 35, 36 and 37 are deleted in their entirety.
Section 3. Amendment to Land Use Plan The Land Use Plan is hereby amended
to incorporate the changes to the Conditions of Approval set forth thereon consistent with the
changes set forth in Section 2 above.
Section 4. Ratification of Prior Agreements Except as amended hereby, the
Development Agreement and the Land use Plan remain unchanged and in full force and effect,
and each of the parties hereto hereby ratifies and confirms the terms and conditions of the same.
All references herein to the Development Agreement shall refer to the Development Agreement
as amended by this Amendment unless the text or context indicates otherwise. In the event of
any conflict between the Development Agreement and this Amendment it is agreed that this
Amendment shall control.
Section 5. Covenant Running with the Land This Amendment 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 10. Recordation of Amendment The parties hereto agree that an executed
original of this Amendment shall be recorded by the City, at the Owner's expense, in the Public
Records of Orange County, Florida.
Section 11. Counterparts This Amendment 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 12. Effective Date. This Amendment shall first be executed by the Owner
and submitted to the City for approval by the Ocoee City Commission. Upon approval by the
Ocoee City Commission, this Amendment shall be executed by the City.
3
4811- 3960 - 2192.2
IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be
executed by their duly authorized elected officials, partners, and /or officers as of the day and
year first above written.
Signed, sealed and delivered
in the presence of
OWNER:
Print Name Vq +Ei
Print Nainc_flo� _`n Q A1 L �
By: -- -
- --_------------ -
Name: Frc-Arr o c --------- - - - - --
Its: vt par
(SEAL)
STATE OF k7z q rsjq y
COUNTY OF 1 t-? 9130ea R
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the
State and County aforesaid to take acknowledgments, personally appeared
64 D who [___] is personally known to me or [_ ] produced
as identification, and that he /she acknowledged executing
the same on behalf of said corporation and limited partnership 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 FSj3U9 Aft 201-A- - -
Si Ttatiir \ o o , t u ar �' _
c� 'y Vvb/
Name of Notary (Typed, Printed or Stamped)
Commission Number ofrnot legible on seal):
My Commission Expires (if not legible on seal):
4
4811 - 3960 - 2192.2
CITY
Signed, sealed and delivered
in the presence of: CITY OF OCOEE, FLORIDA
Print Name:
Print Name:
FOR USE AND RELIANCE ONLY BY THE
CITY OF OCOEE, FLORIDA. Approved as to
form and legality this day of
, 2014.
SHUFFIELD, LOWMAN & WILSON, P.A.
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
Beth Eikenberry, City Clerk
(SEAL)
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 5 2014.
Signature of Notary
S. Scott Vandergrift, Mayor
Attest:
Name of Notary (Typed, Printed or Stamped)
Commission Number (if not legible on seal):______
My Commission Expires (ifnot legible on seal):
5
4811- 3960 - 2192.2
EXHIBIT "B"
(Conditions of Approval)
1. 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 two (2) phases.
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. This project shall comply with, adhere to, and not deviate from or otherwise conflict with
any verbal or written promise or representation made by the Owner /Applicant (or
authorized agent thereof) to the City Commission at any public hearing where this project
was considered for approval, where such promise or representation, whether oral or
written, was relied upon by the City Commission in approving the project, could have
reasonably been expected to have been relied upon by the City Commission in approving
the project, or could have reasonably induced or otherwise influenced the City
Commission to approve the project. For purposes of this Condition of Approval, a
"promise" or "representation" shall be deemed to have been made to the City Commission
by the Owner /Applicant (or authorized agent thereof) if it was expressly made to the City
Commission at a public hearing where the project was considered for approval.
7. 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.
8. There shall be no access from the property to any public streets except at the approved
locations shown on the approved Final Subdivision Plan.
9. All building pad elevations will exceed the 100 -year flood elevation by a minimum of two
(2) 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
oRLn »sos1a.s -10-
off during construction and silt fences installed to eliminate any possibility of disturbance
in those areas during construction.
11. The Developer shall comply with all requirements of the City and other governmental
entities with jurisdiction to protect the wetlands being preserved and to prevent any
disturbance, siltation, or other construction below the natural wetland lines. Further, the
areas below the natural wetland lines shall be fenced off (and silt fences shall be installed)
during construction activities immediately adjacent to the wetlands, in order to minimize
disturbances of the wetlands during construction.
12. Wetland and existing surface water impact for this property is regulated by St. Johns River
Water Management District ( "SJRWMD') and the Florida Department-of Envaenmental
Protection ( "FDEP "). General or Individual permits are required from these agencies
prior to commencement of construction.
13. All existing structures (including buildings, power lines, existing aerial and utility facilities,
but exempting billboards which shall be controlled by Section 8 of the Agreement) will be
removed and/or terminated prior to or during construction of the development replacing
those uses.
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 on individual lots containing protected trees will be maintained as
much as possible to preserve existing protected trees. For lots containing protected trees,
there will be no grading or other construction on individual lots except as specified in the
Final Subdivision Plan, until building permits are issued for those lots.
16. Removal of existing protected trees will be limited to clearing road right -of -way and
retention areas as detailed in the Final Subdivision Plan. All existing protected trees on
individual lots will be evaluated at the time a building permit is issued for that lot, to
determine whether or not each tree needs to be removed.
17. In order to insure 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.
oRLA 1130918.8 -11-
19. The Final Grading Plan will preserve existing grades on individual lots containing
protected trees as much as possible.
20. All cross access, utility and/or drainage easements shall be provided prior to or at the time
of platting.
21. All utilities including electrical, cable, TV, and telephone and including on -site existing
overhead wires shall be placed underground.
22. 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 othw4nmgenry. The City may require that the owner «r
execute an easement in recordable form with respect to the foregoing.
23. The Developer shall construct appropriate curb cuts to enable access 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, and otherwise comply with all Americans with Disabilities Act
( "ADA ") requirements. When sidewalks are constructed at certain corner locations, the
sidewalks will be extended to the curb and the appropriate ramps will then be constructed.
The Owner will be responsible for the continued maintenance of all streets and sidewalks
in accordance will all ADA requirements that may now or hereinafter be applicable to the
project.
24. Parking shall be provided in accordance with the City of Ocoee Land Development Code.
25. To the extent any lift stations are required on the property they will be conveyed to the
City at the time of platting. All such lift stations shall be fenced with black, vinyl chain -link
fence, with posts and rails painted black, and shall be set back no less than 25' from any
street. Such lift stations shall also be screened with hedge -type shrubbery, such as
viburnum or ligusttum. Lift stations shall not be deemed buildings for the purpose of
assessing or collecting a pro rata share of the Traffic Mitigation Payment pursuant to
Section 5 of the Agreement.
26. 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.
27. All landscape areas will be irrigated and have automatic rain sensors.
28. Reclaimed water will be used for irrigation purposes, if available.
29. The Developer shall be responsible for installing reuse lines along with the other project
infrastructure. At such time as reuse water is available to the property, the Owner of each
Lot shall be responsible for connection to the reuse system lines.
30. One or more property owners associations (the "Association") will be created for
maintenance and management of all common areas, unless otherwise noted. All tracts
ORLA_1130918.6 -12-
owned by the City shall be exempt from assessments by, or participation in, the
Association unless otherwise agreed to by the City. Notwithstanding the foregoing, the
City on its own may elect to participate on the Board for the Association formed and/or
retain voting rights for tracts owned by the City.
31. All tracts, which are to be owned and maintained by the Association, shall be conveyed to
the Association by warranty deed at the time of platting.
32. All common area improvements including entry features, walls, landscaping and sidewalks
along all roads, as well as landscaping around the retention pond tracts and lift station
tracts shall be completed prior to issuance of the Certificate of Completion for those
r - vmosponding phases. "
33. The stormwater system, including all pipes, inlets, manholes and structures, together with
Tract A (retention pond), will be owned, operated and maintained by the Association.
34. All stormwater management ponds will be unfenced with maximum 5:1 side slopes into
the pond.
35. Unless otherwise noted, a 5' utility and drainage easement will be platted along all side lot
lines and a 10' utility, drainage and sidewalk easement will be platted adjacent to all street
rights -of -way. Sidewalks will only be placed in this easement if necessary to run them
around existing protected trees to be preserved.
36. All utilities to be placed within the 10' easement adjacent to all street rights -of -way will be
placed around existing protected trees to be preserved.
37. All drainage, utility and maintenance easements shall be for the benefit of the property
owners association or other designated maintenance entities. The drainage and utility
easements shall be dedicated to the perpetual use of the public at the time of platting.
38. Drainage easements between lots are shown for location only. Final easement dimensions
will be shown on the Final Subdivision Plan and will be sized to meet City requirements.
39. An emergency access easement to the retention ponds and over all drainage easements
shown hereon shall be dedicated to the City for emergency maintenance purposes at the
time of platting. The emergency access easement will not impose any obligation, burden,
responsibility or liability upon the City, to enter upon any property it does not own or take
any action to repair or maintain the drainage system on the property.
40. Notwithstanding the conveyance of the storm water retention ponds to the property
owners association, or any provision to the contrary contained in these conditions of
approval, the Developer shall remain responsible for the maintenance of the project's
master stormwater management system ( "SWMS "), including all master stormwater
retention ponds, until such time as: (i) the SWMS for the project is constructed and
appropriate certificates of completion issued by both the City and the SJRWMD, (ii) the
master stormwater retention ponds intended to be conveyed to the Association have in
owe► IIW91s.s -13-
fact been conveyed to the Association, (iii) the Association is designated as the
maintenance entity on the records of the SJRWMD and all transfer records required by
SJRWMD have been executed and accepted by SJRWMD, (iv) the City has been provided
with a copy of the Developer's proposed maintenance plan with respect to the SWMS, and
(v) the City has been provided with a written statement from the Association
acknowledging receipt of the Developer's proposed maintenance plan with respect to the
SWMS and that the Association is responsible for the maintenance of the SWMS.
41. All Declaration of Covenants and Restrictions affecting the property shall include the
following provisions:
A. Provision allowing thwCity to levy, collect, enforce assessments for maintens= x
of common areas if the Association fails to do so or fails to maintain assessments
at a level allowing for adequate maintenance.
B. Provision granting the City the right, but not the obligation, to maintain/repair the
SWMS and obtain reimbursement from the Association, or from the Developer if
(i) turnover of control to the members has not occurred, or (ii) if the Developer is
still responsible for maintenance of the SWMS.
C. Provision providing that the SWMS will be transferred to a responsible
operation/maintenance entity acceptable to the City in the event of dissolution and
that if dissolution occurs without such approval then the City may continue to levy
and collect assessments and impose liens with respect thereto notwithstanding the
dissolution of the Association.
D. Provision that the Association shall at all times be in good standing with the
Florida Secretary of State.
E. Provision that at the time of turnover of control of the Association to the
members, the Declarant shall deliver to the new Board of Directors the
maintenance plan for the SWMS accompanied by an engineer's certification that
the SWMS is fumctioning in accordance with all approved plans and permits. To
the extent that any such engineer's report indicates any corrective action is required
the Declarant shall be required to diligently undertake such corrective action at the
Declarant's expense and to post a cash bond with the Association for the estimated
costs of such corrective action.
F. Provision that no property owned by the City or any other governmental entity
shall be subject to assessments levied by the Association.
G. Provision that any amendment to any provision affecting the City requires the
consent of the City in an instrument recorded with the amendment.
The Articles of Incorporation and Bylaws of the Association shall be consistent with the
foregoing provisions.
ORLA_1130918.8 -14-
42. The Final Subdivision Plan for the property shall include Master Architectural, Signage,
Lighting and Landscape Package Plans, which will be subject to the review and approval
by the City. All Lot uses shall conform to the Master Architectural, Signage, Lighting and
Landscape Package Plans.
43. All cross access, utility and drainage easements shall be provided prior to or at the time of
platting.
44. All legal instruments, including but not limited to articles of incorporation, bylaws, and
declaration of covenants and restrictions for the Association, deeds in favor of the
Association or the City, and easement documents shall be provided to the City for review
- - • -- and approval prior to or at the time of platting all or a portion of the property.
45. All tracts to be conveyed to the City will be conveyed by Warranty Deed at the time of
platting, unless otherwise noted. Notwithstanding the conveyance of any tract to the City
until such time as any improvements contemplated for said tract are commenced, the
Developer shall be responsible for the maintenance of the tract.
46. Pursuant to Section 4- 4(G)(7) of the Ocoee Land Development Code, all subdivision
signage must be consistent with the legally assigned name of the subdivision. Any
subsequent change to the name of the subdivision must be approved by the City
Commission.
47. A privacy wall will be constructed by the Developer along Tomyn Road in front of the
Project with the design of such privacy wall being subject to approval by the City as part
of the Final Subdivision Plan.
48. The Developer shall not remove any tress from Phase 2 (Lot 17) prior to development of
Phase 2 (Lot 17).
49. A privacy wall will be constructed by the Developer on the south side of Phase 2 (Lot 17)
prior to the issuance of any building permits for vertical construction on Phase 2 (Lot 17).
50. The regulation of billboards on the Property will be pursuant to and subject to the
provisions of a separate relocation and reconstruction agreement between the City, the
Developer and the owner of any billboard located on the Property.
ORLA 1130918.6 -15-