HomeMy WebLinkAboutItem VI (C) Approve and Authorize Mayor and City Clerk to Execute Amendment to Developers' Agreements with Prima Vista Developers •
AGENDA 10-6-92
Item VI C
FOLEY & LARDNER
III NORTH ORANGE AVENUE,SUITE 1800
POST OFFICE BOX 2193
ORLANDO, FLORIDA 32802-2193
JACKSONVILLE, FLORIDQ, TELEPHONE 1407) 423-7656 IS A MEMBER OF GLOBALEX
TALLAHASSEE, FLORIDAWITH MEMBER OFFICES IN
FACSIMILE 14071 648-1743
TAMPA, FLORIDA"
WEST PALM BEACH, FLORIDA LONDON, ENGLAND
MILWAUKEE, WISCONSIN PARIS, FRANCE
MADISON, WISCONSIN BERLIN, GERMANY
CHICAGO, ILLINOIS STUTTGART, GERMANY
WASHINGTON, D.C. DRESDEN, GERMANY
ALEXANDRIA, VIRGINIA SINGAPORE
ANNAPOLIS, MARYLAND TAIPEI, TAIWAN
MEMORANDUM
TO: OCOEE CITY COMMISSION
THROUGH: ELLIS SHAPIRO
FROM: R. DUKE WOODS-03-N-7 )
DATE: SEPTEMBER 21, 1992
RE: AMENDMENT TO DEVELOPERS' AGREEMENTS
The attached Amendment would amend the Developers'
Agreements entered into by the City at the time of the purchase of
the sewer utility from Prima Vista in 1987. The Amendment
addresses the revenue and maintenance fee which was adopted by
Resolution on August 18, 1992, and provides that the City will
provide for a time of payment for the "Prima Vista Developers"
which equitably reflects the payment schedule provided for in the
existing Developers' Agreements. The Amendment also provides that
the City will not selectively enforce the charging and collection
of the revenue and maintenance fee, which is provided for in the
August 18 Resolution.
Because the "Prima Vista Developers" have paid a revenue
and maintenance fee for several years while other developers have
not, the Amendment provides for a waiver of the extension fee which
the developers would have to pay in 1997 if they wish an extension
of the capacity allocation.
I recommend the Commission approve the Amendment and
authorize execution by the Mayor.
cc: Montye Beamer
Jean Grafton
Paul E. Rosenthal
0To •.
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AMENDMENT TO CITY OF OCOEE WASTE WATER
DEVELOPERS' AGREEMENTS NOS. OWW-87-2,
OWW-87-3, OWW-87-4, OWW-87-5, OWW 87-8
OWW-87-10, OWW-87-11, AND OWW-87-12
THIS AGREEMENT is made and entered into as of the 1st day of
October, 1992 , by and between the City of Ocoee (hereafter referred
to as the "UTILITY" ) and the parties listed on attached Exhibit "A"
(hereafter referred to in aggregate as the "DEVELOPERS" and in the
singular as the "DEVELOPER" ) and those parties listed on attached
Exhibit "B" (hereafter referred to as in the aggregate as the
"OWNERS" and in the singular as the "OWNER" ) . Exhibits "A" and "B"
are by this reference made a part hereof.
RECITALS
1 . The DEVELOPERS and OWNERS entered into new wastewater
developers ' agreements (the "New Agreements" ) with the UTILITY on
December 30, 1987 , as listed on Exhibit "C" attached to and
incorporated in this Agreement.
2 . As provided in Subsections 6 .2 and 7 . 1 of the New
Agreements, the DEVELOPERS and OWNERS are required to pay
"Guaranteed Revenue and Maintenance Fees " to the UTILITY.
3 . The UTILITY has heretofore adopted Article VI of Chapter
173 of the Code of the City of Ocoee entitled City Revenue and
Maintenance Fee. On August 18, 1992 the UTILITY adopted Resolution
No. 92-13 authorizing the implementation of a revenue and
maintenance fee for sewer and water permits to be paid annually or
monthly by all those UTILITY customers who possess City of Ocoee
sewer and/or water permits authorizing connection to any UTILITY
water or sewer treatment facility.
1
4 . The DEVELOPERS and OWNERS have been the only entities who
have paid the revenue and maintenance fees to date.
5 . The UTILITY now intends to charge and collect a revenue
and maintenance fee as set forth in City of Ocoee Resolution No.
92-13 .
6 . In recognition of the prior revenue and maintenance fees
paid to UTILITY by the DEVELOPERS and OWNERS and their forbearance
in questioning past practices of the UTILITY, the parties hereto
now wish to modify and amend all the agreements listed on Exhibit
"C" hereof so that they more closely comport with City policies,
including City of Ocoee Resolution No. 92-13 .
7 . The UTILITY, the DEVELOPERS, and the OWNERS hereby
acknowledge and warrant to the other that this Agreement and any
future acts as required hereby are binding and enforceable on the
UTILITY, the DEVELOPERS, and the OWNERS in accordance with their
terms .
8 . Section 24 of the agreements listed in Exhibit "C" hereof
contemplate and require that amendments to and waivers of the
provisions of the agreements must be made by the parties in writing
by formal amendment.
9 . The UTILITY and the DEVELOPERS ' AND OWNERS ' preceding
service company entered into certain stipulations and agreements as
set forth in paragraph 2 .h. of two judicial stipulations in
December of 1987 and the Purchase and Sale Agreement of December 3,
1987, which contemplates execution of an agreement such as this
Agreement.
10 . For purposes of this Agreement, BML Investments, PRN
Investments, Jerome D. Feinstein, Jeffrey Yeager, Trustee, and
William and Lieser M. Colburn are not, and should not, be inferred
as being developers or dealers even though they may be referred to
as such herein. Use of the term "DEVELOPER" was done to conform
this document to prior City of Ocoee documents .
ACCORDINGLY, in consideration of the Recitals hereof, for and
in consideration of the mutual undertakings and agreements herein
contained and assumed, and other good and valuable consideration
the receipt and sufficiency of which are acknowledged by the
parties, the parties do hereby agree as follows:
SECTION 1. RECITALS. The above Recitals are true and
correct, and form a material part of this Agreement.
2
SECTION 2. AMENDMENT TO SUBSECTIONS 6 .2 AND 7. 1 OF THE NEW
AGREEMENTS.
2. 1 AMENDMENT TO SUBSECTION 6.2. Subsection 6 .2 of all
the New Agreements listed on Exhibit "C" hereof is amended by
adding a new paragraph at the end of the existing text of
Subsection 6 .2 . The existing text shall remain unchanged and the
new paragraph shall read as follows:
Notwithstanding anything to the contrary set forth
above in this Subsection 6 .2 , each DEVELOPER shall
pay the "revenue and maintenance fee" in accordance
with and in the amount as may from time to time be
established by Resolution of the City Commission of
Ocoee adopted pursuant to the provisions of Article
VI of Chapter 173 of the Code of Ordinances . This
obligation, however, shall be contingent upon the
following:
( 1) The UTILITY shall not selectively enforce
the charging and collection of the revenue and
maintenance fee, and shall charge and collect
said fee from all those who hold the right to
receive sewer service capacity whether by
permit or contract, and
(2) In establishing time of payment, the
UTILITY shall give appropriate, fair, just and
equitable credit for time previously paid for
3
by each DEVELOPER and/or OWNER, and,
( 3) So long as the fee is paid, each
DEVELOPER and OWNER shall be entitled to the
time period for sewer service capacity set
forth in Subsection 7 . 1.
2.2. AMENDMENT TO SUBSECTION 7.1. Subsection 7 . 1 of all
the New Agreements listed on Exhibit "C" hereof is amended in that
the UTILITY hereby waives and releases the DEVELOPERS and OWNERS
from the obligation to make the payment of from $200 . 00 to $400 .00
per ERC in order to obtain the additional five (5) year extension
of sewer service capacity allocation. Henceforth, the period of
capacity allocation shall be fifteen ( 15) years from the date of
original execution (instead of the ten ( 10) years previously
granted) , and no such fee shall be due or owed to the UTILITY by
the DEVELOPER or OWNERS. In all other respects, Subsection 7 . 1
shall remain unchanged and the same as now written.
SECTION 3. RELEASE OF CLAIMS FOR PAST FEES PAID BY DEVELOPERS
AND OWNERS. In consideration of the execution of this Agreement by
the UTILITY and in further consideration of the sum of $10 .00, the
receipt and sufficiency of which is hereby acknowledged, the
DEVELOPER and OWNERS hereby covenant and agree that they will not
seek a refund of any revenue and maintenance fees heretofore paid
by the DEVELOPER and/or OWNERS to the UTILITY and further remise,
release, acquit, satisfy and forever discharge the UTILITY, of and
from all, and all manner of action and actions, causes of action,
4
suits, debts, sums of money, contracts, damages, judgments, claims
and demands, whatsoever, in law or in equity, which the DEVELOPER
and/or OWNERS ever had, now have, or which any personal
representative, successor, heir or assign of the DEVELOPER and/or
OWNERS hereafter can, shall or may have against the UTILITY
(whether in its proprietary or governmental capacity) for, upon or
by reason of any revenue and maintenance fees heretofore paid to
the UTILITY or hereafter paid to the UTILITY by virtue of this
Agreement and/or the Code of Ordinances of the City of Ocoee or any
resolutions adopted pursuant thereto.
SECTION 4. EFFECT OF THIS AGREEMENT. Except as expressly
and specifically amended herein, the City of Ocoee Waste Water
Developers ' Agreements Nos . OWW-87-2, OWW-87-3, OWW-87-4, OWW-87-5,
OWW-87-8, OWW-87-10, OWW-87-11, AND OWW-87-12 shall remain
unchanged and in full force and effect. The UTILITY, the
DEVELOPERS and the OWNERS hereby ratify and confirm the New
Agreements, the Purchase and Sale Agreement of December 3, 1987,
and the two stipulations referenced in Recital No. 9 hereof, and
any prior or future assignments thereof.
IN WITNESS WHEREOF, the parties hereto have hereunder executed
this Agreement as of the date and year first above written.
5
"UTILITY"
APPROVED:
CITY OF OCOEE, FLORIDA
Lester Dabbs, Jr. , Mayor
ATTEST:
Jean Grafton, City Clerk
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING
APPROVED AS TO FORM AND HELD ON , 1992,
LEGALITY this day of UNDER AGENDA ITEM NO.
, 1992 .
FOLEY & LARDNER
By:
City Attorney
WITNESSED: "DEVELOPERS"
RESIDENTIAL COMMUNITIES OF AMERICA
(x) by and through its general partner
ROLESHAR, INC.
Name:
(x) By:
Jerome D. Feinstein, President
Name:
6
WITNESSED: BML INVESTMENTS
(x)
Name: By:
William J. Goodman, Managing
(x) General Partner
Name:
WITNESSED: PRN INVESTMENTS
(x)
Name: By:
Norman A. Rossman, Managing
(x) General Partner
Name:
WITNESSED: JEFFREY YEAGER, Trustee
(x)
Name: By:
Jeffrey Yeager, Trustee
(x)
Name:
WITNESSED: CAMBRIA INC./CYPRESS CREEK NURSERY,
INC.
(x)
Name: By:
William E. Colburn, as President
(x) and individually
Name:
7
WITNESSED: By:
Leiser M. Colburn, individually
(x)
Name:
(x)
Name:
WITNESSED: WEST 50 JOINT VENTURE
(x)
Name: By:
William J. Goodman, Trustee
(x)
Name:
WITNESSED: JEROME D. FEINSTEIN, as Trustee and
as an individual
(x)
Name: By:
Jerome D. Feinstein, as Trustee
(x) and individually
Name:
WITNESSED: NJB INVESTMENTS, INC.
(x)
Name: By:
William J. Goodman, President
(x)
Name:
8
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992, by Lester Dabbs, Jr. , the Mayor, and
Jean Grafton, City Clerk of the City of Ocoee on behalf of the City
of Ocoee. They are personally known to me and did not take an
oath.
(Signature)
(Print Name)
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992, by JEROME D. FEINSTEIN, President of
RESIDENTIAL COMMUNITIES OF AMERICA by and through its general
partner Roleshar, Inc . , a , on behalf of
the . He is personally known to me or has produced
as identification and (did/did not) take an
oath.
(Signature)
(Print Name)
Notary Public
My Commission Expires:
9
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992 , by WILLIAM J. GOODMAN, Managing General
Partner of BML INVESTMENTS, a partnership, on behalf
of the partnership. He is personally known to me or has produced
as identification and (did/did not) take an
oath.
(Signature)
(Print Name)
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992, by Norman A. Rossman, Managing General
Partner of PRN INVESTMENTS, a partnership, on
behalf of the partnership. He is personally known to me or has
produced as identification and (did/did not)
take an oath.
(Signature)
(Print Name)
Notary Public
My Commission Expires:
10
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992, by JEFFREY YEAGER, Trustee. He is
personally known to me or who has produced
as identification and who (did/did
not) take an oath.
Signature
(Print Name)
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992, by WILLIAM E. COLBURN, as President, on
behalf of CAMBRIA INC. /CYPRESS CREEK NURSERY, INC. , a
corporation, and individually. He is personally
known to me or has produced as
identification and (did/did not) take an oath.
(Signature)
(Print Name)
Notary Public
My Commission Expires:
11
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992, by LEISER M. COLBURN, individually.
He/she is personally known to me or has produced
as identification and (did/did not) take
an oath.
(Signature)
(Print Name)
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992, by WILLIAM J. GOODMAN, Trustee, of WEST
50 JOINT VENTURE, a joint venture, on behalf of the
joint venture. He is personally known to me or has produced
as identification and (did/did not) take an
oath.
(Signature)
(Print Name)
Notary Public
My Commission Expires:
12
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992 , by JEROME D. FEINSTEIN, as Trustee and
as an individual . He is personally known to me or who has
produced as identification and who
(did/did not) take an oath.
Signature
(Print Name)
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1992, by WILLIAM J. GOODMAN, President of NJB
INVESTMENTS, INC. , a corporation, on behalf of the
corporation. He is personally known to me or has produced
as identification and (did/did not) take an
oath.
(Signature)
(Print Name)
Notary Public
My Commission Expires:
j1m:40063-1:amendoco:09/18/92:5
13
EXHIBIT "A"
DEVELOPERS
Contract Number: Developer Name/Address Project
OWW-87-2 Mr. William J. Goodman Shuman Property
NJB Investments, Inc.
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-3 BML Investments Spring Lake
PRN Investments
Jerome Feinstein
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-4 Mr. J. D. Feinstein Sims Property
Residential Communities of America
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-5 Mr. Jeffrey Yeager Good Homes/SR50
c/o Mr. Jerome Feinstein
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-8 Mr. Jerome Feinstein Lake Lotta
Residential Communities of America
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-10 Cambria Inc./Cypress Creek Cambria/Colburn
Nursery, Inc.
William E. Colburn & Leiser M. Colburn
Post Office Box 689
Windermere, Florida 32789
OWW-87-11 Mr. William J. Goodman, Trustee West 50 JV
West 50 Joint Venture
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-12 BML Investments, as successor to Heavener Property
Mr. Steven D. Fieldman, as Trustee
890 State Road 434 North
Altamonte Springs, Florida 32714
EXHIBIT "B"
OWNERS
Contract Number Name/Address
OWW-87-2 NJB Investments, Inc .
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-3 BML Investments
PRN Investments
Jerome Feinstein
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-4 BML Investments
Jerome Feinstein
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-5 Mr. Jeffrey Yeager, Trustee
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-8 Residential Communities of America
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-10 Cambria Inc. /Cypress Creek Nursery,
Inc .
William E. Colburn & Leiser M.
Colburn
Post Office Box 689
Windermere, Florida 32789
OWW-87-11 West 50 Joint Venture
Mr. William J. Goodman, Trustee
890 State Road 434 North
Altamonte Springs, Florida 32714
OWW-87-12 BML Investments, as successor to
Steven D. Fieldman, as Trustee
890 State Road 434 North
Altamonte Springs, Florida 32714
EXIIIBIT "C"
LIST OF AGREEMENTS
Agreement
Number Title
OWW-87-2 Waste Water Developer's Agreement
OWW-87-3 Waste Water Developer's Agreement
OWW-87-4 Waste Water Developer's Agreement
OWW-87-5 Waste Water Developer's Agreement
OWW-87-8 Waste Water Developer's Agreement
OWW-87-10 Waste Water Developer's Agreement
OWW-87-11 Waste Water Developer's Agreement
OWW-87-12 Waste Water Developer's Agreement
• .=e
O
yt`° i�
or �000`� JAMES W.SHIRA,P.E.
CITY ENGINEER/UTILITIES DIRECTOR
150 N.LAKESHORE DRIVE•OCOEE,FLORIDA 34761
(407)656-2322
MEMORANDUM
DATE,: October 5, 1992
TO: 7 The Honorable Mayor and Board of City Commissioners
FROM: James W. Shira, P.E.
City Engineer/Utiliti erector
SUBJECT: Clarke Road Change Order #1
In the staff report included in your packets, I stated that Exxon Oil Co. still owed $7,931.17 for
work done on their behalf, to be collected at time of construction.
I was wrong. Exxon has, in fact paid this amount to the city, and they owe no other money to
us for any Clarke Road improvements.
Therefore, Item #5 of the Change Order has been paid for in full by the respective developers.
I apologize for any confusion this has caused.
JWS/jbw
THE PRIDE OF WEST ORANGE l _a