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HomeMy WebLinkAboutItem #10 Ocoee Shopping Center Dev. Agreement center of Good L - ~~e"" '. ".ll'~ ~ AGENDA ITEM COVER SHEET Meeting Date: March 7, 2006 Item # Jf) Contact Name: Contact Number: Terry L. James 407 -905-3100/1018 Reviewed By: Department Director: City Manager: QJV - - Subject: Ocoee Sho Center Development Agreement Background Summary: Living Waters Church and God's Factory Christian Center (Agenda Items 8 and 9, respectively) applied for Special Exceptions as church uses in a Community Commercial (C-2) Zoning Classification within the Ocoee Shopping Center located on the northwest corner of Ocoee-Apopka Road and Silver Star Road. This Development Agreement with Magdy "Mike" A. Mansour, the owner of the shopping center, represents the upgrades to the shopping center needed to approve these uses. Issue: Should the Mayor and City Commissioners approve this Development Agreement as a condition of approval for the Special Exception applications filed by Living Waters Church and God's Factory Christian Center for a church use within the Ocoee Shopping Center? Recommendations Based on the staff report for Living Waters Church and God's Factory Christian Center, the DRC recommendation, and the P&Z recommendation, Staff recommends the Mayor and City Commissioners approve this Development Agreement as a condition of approval for the above Special Exception applications, Attachments: None Financial Impact: Type of Item: (please mark with an "x') Public Hearing _ Ordinance First Reading _ Ordinance Second Reading Resolution X Commission Approval Discussion & Direction For Clerk's Deat 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 THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Edward A. Storey III, Esq. FOLEY & LARDNER LLP III North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 RETURN TO: For Recording Purposes Only Beth Eikenberry, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407) 656-2322 DEVELOPMENT AGREEMENT (Ocoee Shoppinl! Center) THIS DEVELOPMENT AGREEMENT ("this Agreement") is made and entered into as of the _ day of ,2006 by and between MAGDY A. MANSOUR, whose mailing address is 4442 Begonia Court, Windermere, Florida 34786 (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! T N E ~ ~ E T H: 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" or the "Shopping Center"); and WHEREAS, pursuant to the application of the Owner, date stamped on May 1 0, 2005, the Ocoee City Commission approved, subject to the execution of this Agreement, the Preliminary Site Plan for Special Exception for Living Waters Church ("Living Waters"), as prepared by Pavol Stankay and modified by Living Waters Church and being date stamped as received by the City on November 16,2005, with such additional revisions thereto, if any, as may be reflected in the minutes of said City Commission meeting (the "Living Waters Special Exception"); and WHEREAS, pursuant to the application of the Owner date stamped on December 19, 2005, the Ocoee City Commission approved, subject to the execution of this Agreement, the Preliminary Site Plan for Special Exception for God's Factory Christian Center ("God's Factory"), as prepared by Pavol Stankay and modified by God's Factory Christian Center and ORLA_ 403350_1 being date stamped as received by the City on December 19,2005, with such additional revisions thereto, if any, as may be reflected in the minutes of said City Commission meeting (the "God's Factory Special Exception", together with the Living Waters Special Exception, the "Special Exceptions"); and WHEREAS, the Owner anticipates the submission to the City of a boundary survey and updated small scale site plan for the Property (the "Shopping Center Final Site Plan") for the redevelopment of the Property, which will be based upon and be consistent with the Special Exceptions; and WHEREAS, the Owner and the City desire to execute this Agreement in order to evidence their mutual agreement as to certain matters related to the redevelopment of the Property and as a condition to the approval of the Special Exceptions by the City. 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. All capitalized terms not otherwise defined herein shall be as defined or described on the Special Exceptions unless otherwise indicated. Section 2. Redevelopment of the Property. A. The Owner hereby agrees to redevelop the Property in accordance with the Shopping Center Final Site Plan and all permits and approvals issued by the City and other governmental entities with respect to the Property. As of the date hereof, the Special Exceptions have been approved by the City, such Special Exceptions being hereby incorporated herein by reference as if fully set forth herein. B. The Owner hereby agrees that the Property shall be redeveloped 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. C. Except as otherwise expressly set forth in this Agreement and the Special Exceptions 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) the Shopping Center Final Site Plan 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. Shoppine: Center Final Site Plan. The Owner agrees to submit the proposed Shopping Center Final Site Plan to the City within six (6) months from the Effective Date of this Agreement. Such Shopping Center Final Site Plan shall incorporate each of the ORLA_ 403350,1 -2- improvements listed in the Conditions of Approval attached hereto, and the Staff Comments that were subject to the Special Exception approvals. Section 4. Improvements. The Owner, at the Owner's expense, agrees to undertake and complete the improvements depicted on the approved Shopping Center Final Site Plan within two (2) years from the date of approval of the Shopping Center Final Site Plan by the City. The phasing of the improvements shall be determined upon approval of the Shopping Center Final Site Plan. Section 5. 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 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 6. Covenant Runnim! 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 7. Recordation of Ae:reement. 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 8. 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 9. 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 10. 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 11. 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 12. Remedies: 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 ORLA_ 403350,1 -3- performance. In addition, the City shall have such other remedies as are available existing at law or in equity. Section 13. Code Enforcement. Violation of this Agreement shall be deemed a violation of the City of Ocoee Code and shall be subject to proceedings before the Ocoee Code Enforcement Board. Section 14. Attornevs' 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 15. 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 16. 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 17. 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 18. Effective Date. The Effective Date of this Agreement shall be the day and year first above written. ORLA_ 403350,1 -4- 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. Signed, sealed and delivered in the presence of OWNER: Print Name MAGDY A. MANSOUR Print Name 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 MAGDY A. MANSOUR, who Ll is personally known to me or Ll 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 , 2006. 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): ORLA_ 403350,1 -5- CITY: Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA By: Print Name: S. Scott Vandergrift, Mayor Attest: Beth Eikenberry, City Clerk Print Name: (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this day of , 2006. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON UNDER AGENDA ITEM NO. FOLEY & LARDNER LLP By: City Attorney 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 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 , 2006. 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): ORLA_ 403350,1 -6- JOINDER AND CONSENT ORLA_ 403350,1 -7- EXHIBIT "A" THE PROPERTY ORLA_ 403350,1 -8- EXHIBIT "B" CONDITIONS OF ApPROVAL FOR LIVING WATERS CHURCH 1) The final site plan for the tenant space ("Tenant Space Final Site Plan") shall comply with the Special Exception Preliminary Site Plan as approved by the City Commission. 2) This Special Exception shall expire twelve (12) months from the date of approval by the City Commission unless a building permit is obtained prior to such date; such permit being for the construction of the proposed use authorized by the Special Exception. Further, upon issuance of the building permit, the Applicant (or its agent) shall diligently proceed in good faith to complete construction in accordance with the terms hereof. Failure of the Applicant (or its agent) to proceed as aforesaid shall provide a basis for revocation of the Special Exception by the City Commission. 3) Approval of this Special Exception does not authorize commencement of development. Prior to issuance of a building permit, it will be necessary to obtain approval for the Tenant Space Final Site Plan pursuant to the provisions of Article IV of the Ocoee Land Development Code. Further, compliance with all other applicable provisions of the Ocoee land Development Code shall be required. 4) The Applicant (or its agent) shall make a good faith effort to obtain a Certificate of Occupancy for the use authorized by this Special Exception within six (6) months of issuance of the building permit. 5) Should the use authorized by this Special Exception be terminated or substantially modified or expanded in a manner inconsistent with the Conditions of Approval for the Special Exception, then said Special Exception may be revoked by the City Commission at its sole discretion. 6) This Special Exception for Church use shall be applicable only to the proposed Living Waters Church as shown on the Special Exception Preliminary Site Plan in Space 14 of the Shopping Center and is not transferable to any other operator prior to issuance of a Certificate of Occupancy. 7) Prior to the approval of the Tenant Space Final Site Plan, or any portion thereof, the Applicant/Owner will need to apply for and obtain a Final Certificate of Concurrency pursuant to Article IX of the Ocoee Land Development Code. Neither the review of the application/project by the City nor the granting of any approvals in connection with such review shall be construed to grant the Applicant/Owner any entitlement to obtain a Final Certificate of Concurrency with respect to all or any portion of the project or to create any exception from the provisions of Article IX of the Ocoee Land Development Code. 8) Within six (6) months of the approval of this Special Exception by the City Commission, the Owner shall provide a boundary survey and an up-to-date small-scale site plan for the Shopping Center (the "Shopping Center Final Site Plan"). The Owner will have two (2) years from the date of approval of the Shopping Center Final Site Plan to complete the site improvements provided herein. The phasing of the improvement will be determined ORLA_ 403350.1 -9- ORLA_ 403350.1 upon approval of the Shopping Center Final Site Plan. The Owner will be responsible for the following site improvements: a. Landscaping and irrigation shall be upgraded as follows: i. Installation of landscape islands with irrigation along the entrances and at the ends of the parking bays; ii. Placement of large potted plants along the sidewalk entrances to the shopping center spaces; and iii. Upgrading the current "cobra head" light fixtures by retrofitting the fixtures with light shields to screen out horizontal glare and to lessen lighting spillover onto adjacent parcels and the painting of the existing poles black. b. Landscape improvements at the east side entrance to the Shopping Center at Palm Drive including, but not limited to raised curbing and a defined green area with vertical and horizontal plantings. c. Landscaping improvements at the south side entrance at the Silver Star Extension including, but not limited to ingress/egress delineation with raised curbing and a defined green area with vertical and horizontal plantings. d. Drainage shall be upgraded to meet the criteria contained in City of Ocoee Land Development Code under Subsection 6-7: Surface Water Management and St. Johns River Water Management District standards including but not limited to: i. The recalculation and subsequent enlargement of the storm water pond located at the west end of the Shopping Center; ii. Provision of a positive outfall for the pond; and iii. The evaluation to determine if additional inlets in the parking lot to provide for proper drainage to the retention pond. e. Miscellaneous site improvements as follows: i. Along the west side of the existing parking lot, improvements to the chain-link fence. Black aluminum "wrought iron" fencing not to exceed six feet in height is an acceptable form of fencing. This fencing will have a fully irrigated landscape buffer on the east side of the fence consisting of sweet viburnim hedging spaced at 30 inches on center and 36 inches in height; ii. Screening of the dumpster enclosures at the rear of the property in accordance with the current Land Development Code with the exterior to be constructed with decorative masonry stucco painted with the building's exterior color with black metal gates; and iii. Re-stripping of the parking lot including directional arrows and crosswalks. -10- CONDITIONS OF ApPROVAL FOR GOD'S FACTORY CHRISTIAN CENTER 1) The final site plan for the tenant space ("Tenant Space Final Site Plan") shall comply with the Special Exception Preliminary Site Plan as approved by the City Commission. 2) This Special Exception shall expire twelve (12) months from the date of approval by the City Commission unless a building permit is obtained prior to such date; such permit being for the construction of the proposed use authorized by the Special Exception. Further, upon issuance of the building permit, the Applicant (or its agent) shall diligently proceed in good faith to complete construction in accordance with the terms hereof. Failure of the Applicant (or its agent) to proceed as aforesaid shall provide a basis for revocation of the Special Exception by the City Commission. 3) Approval of this Special Exception does not authorize commencement of development. Prior to issuance of a building permit, it will be necessary to obtain approval for the Tenant Space Final Site Plan pursuant to the provisions of Article IV of the Ocoee Land Development Code. Further, compliance with all other applicable provisions of the Ocoee land Development Code shall be required. 4) The Applicant (or its agent) shall make a good faith effort to obtain a Certificate of Occupancy for the use authorized by this Special Exception within six (6) months of issuance of the building permit. 5) Should the use authorized by this Special Exception be terminated or substantially modified or expanded in a manner inconsistent with the Conditions of Approval for the Special Exception, then said Special Exception may be revoked by the City Commission at its sole discretion. 6) This Special Exception for Church use shall be applicable only to the proposed God's Factory Christian Center as shown on the Special Exception Preliminary Site Plan in Space 10 of the Shopping Center and is not transferable to any other operator prior to issuance of a Certificate of Occupancy. 7) Prior to the approval of the Tenant Space Final Site Plan, or any portion thereof, the Applicant/Owner will need to apply for and obtain a Final Certificate of Concurrency pursuant to Article IX of the Ocoee Land Development Code. Neither the review of the application/project by the City nor the granting of any approvals in connection with such review shall be construed to grant the Applicant/Owner any entitlement to obtain a Final Certificate of Concurrency with respect to all or any portion of the project or to create any exception from the provisions of Article IX of the Ocoee Land Development Code. 8) Within six (6) months of the approval of this Special Exception by the City Commission, the Owner shall provide a boundary survey and an up-to-date small-scale site plan for the Shopping Center (the "Shopping Center Final Site Plan"). The Owner will have two (2) years from the date of approval of the Shopping Center Final Site Plan to complete the site improvements provided herein. The phasing of the improvement will be determined upon approval of the Shopping Center Final Site Plan. The Owner will be responsible for the following site improvements: ORLA_ 403350.1 -11- ORLA_ 403350.1 a. Landscaping and irrigation shall be upgraded as follows: i. Installation of landscape islands with irrigation along the entrances and at the ends of the parking bays; ii. Placement of large potted plants along the sidewalk entrances to the shopping center spaces; and iii. Upgrading the current "cobra head" light fixtures by retrofitting the fixtures with light shields to screen out horizontal glare and to lessen lighting spillover onto adjacent parcels and the painting of the existing poles black. b. Landscape improvements at the east side entrance to the Shopping Center at Palm Drive including, but not limited to raised curbing and a defined green area with vertical and horizontal plantings. c. Landscaping improvements at the south side entrance at the Silver Star Extension including, but not limited to ingress/egress delineation with raised curbing and a defined green area with vertical and horizontal plantings. d. Drainage shall be upgraded to meet the criteria contained in City of Ocoee Land Development Code under Subsection 6-7: Surface Water Management and St. Johns River Water Management District standards including but not limited to: i. The recalculation and subsequent enlargement of the storm water pond located at the west end of the Shopping Center; ii. Provision of a positive outfall for the pond; and iii. The evaluation to determine if additional inlets in the parking lot to provide for proper drainage to the retention pond. e. Miscellaneous site improvements as follows: i. Along the west side of the existing parking lot, improvements to the chain-link fence. Black aluminum "wrought iron" fencing not to exceed six feet in height is an acceptable form of fencing. This fencing will have a fully irrigated landscape buffer on the east side of the fence consisting of sweet viburnim hedging spaced at 30 inches on center and 36 inches in height; ii. Screening of the dumpster enclosures at the rear of the property in accordance with the current Land Development Code with the exterior to be constructed with decorative masonry stucco painted with the building's exterior color with black metal gates; and iii. Re-stripping of the parking lot including directional arrows and crosswalks. -12-