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HomeMy WebLinkAboutItem #02 Approval of the Fourth Amendment to Development & Economic Incentive Agreement for City Center West Orange ()Me() lior AGENDA ITEM COVER SHEET Meeting Date: July 17, 2018 Item # -4�L Reviewed By: Contact Name: Michael Rumer, City Planner Department Director: Contact Number: 407-905-3100 x1018 City Manager: Rob Frank Subject: Fourth Amendment to Development& Economic Incentive Agreement City Center West Orange Commission District# 3 — Richard Firstner Background Summary: On September 6, 2016, the City Commission approved and executed a Development and Economic Incentive Agreement for City Center West Orange Phase 1, by and between CCWO Development Management, LLC; WSCC Development, LLC; MBII; the City of Ocoee, and the Ocoee CRA, for the development of City Center West Orange. Subsequent to the execution of the Original Agreement, which was on October 3, 2016, on October 13, 2016, CBPW Acquired the property in fee simple from WSCC Development, LLC, by a Special Warranty Deed. By its acquisition of the above-referenced parcels, CBPW must undertake all obligations inuring to WSCC Development, LLC, and CCWO Development Management, LLC under the Original Agreement. A First Amendment to the Development and Economic Incentive Agreement was approved and executed at the December 6, 2016, City Commission meeting which amended Section 4 of the Original Agreement to include a provision allowing the economic incentives to be used by the City Center West Orange project on all properties associated with the City Center West Orange development within the Target Area 2. A Second Amendment to the Development and Economic Incentive Agreement was approved and executed at the January 17, 2017, City Commission meeting which extended the dates for ground- breaking from January 1, 2017 to March 1, 2017, and the site development completion date from August 31, 2017 to December 30, 2017 on all properties associated with the City Center West Orange development within Target Area 2. A Third Amendment to the Development and Economic Incentive Agreement was approved and executed at the December 19, 2017, City Commission meeting which extended the Building Permit and construction completion of Maine Street Section 2 dates from December 30, 2017 to July 2, 2018. The developer and staff have recognized that a Fourth Amendment to the Development and Economic Incentive Agreement is now required to extend the expiration dates for Building Permit submittal and construction completion of Maine Street Section 2 from July 2, 2018 to July 2, 2019. Issue: Should the Honorable Mayor and Board of City Commissioners approve a Fourth Amendment to Development and Economic Incentive Agreement to extend the expiration dates for Building Permit submittal and construction completion of Maine Street Section 2 from July 2, 2018 to July 2, 2019? Recommendations: It is staffs recommendation that the Honorable Mayor and Board of City Commissioners approve the Fourth Amendment to Development and Economic Incentive Agreement to extend the expiration dates for Building Permit submittal and construction completion of Maine Street Section 2 from July 2, 2018 to July 2, 2019. Attachments: Fourth Amendment to Development and Economic Incentive Agreement Financial Impact: N/A Type of Item: (please mark with an "x") Public Hearing For Clerk's Dept Use: Ordinance First Reading X. 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 Dana Crosby-Collier N/A Reviewed by Finance Dept. N/A Reviewed by 0 N/A THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Dana Crosby-Collier,Esq. SHUFFIELD,LOWMAN&WILSON.P.A. 1000 Legion Place,Suite 1700 Orlando,FL 32801 (407)581-9800 RETURN TO: City Clerk CITY OF OCOEE For Recording Purposes Only 150 N.Lakeshore Drive Ocoee,FL 34761 (407)656-2322 FOURTH AMENDMENT TO DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) THIS FOURTH AMENDMENT TO DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (this "Amendment") is made and entered into as of the day of July, 2018, by and among CBPW CORPORATION, a Nevada corporation, whose mailing address is 12724 Waterford Pointe Boulevard, Windermere, FL 34786 ("CBPW") and MAINE BOULEVARD II, LLC, a Florida limited liability company, whose mailing address is 7380 West Sand Lake Road, Suite 395, Orlando, FL 32819 ("MB II") (CBPW, and MB II hereinafter referred to collectively 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"). WITNESSETH: WHEREAS, on October 3, 2016, a fully executed Development and Economic Incentive Agreement for City Center West Orange Phase 1, by and between CCWO Development Management, LLC, WSCC Development, LLC, MB II, the City, and the City of Ocoee Community Redevelopment Agency (CRA), for the development of the Property described in Exhibit "A," attached thereto, was recorded at document #20160517902, public records of Orange County, Florida, and is amended by that a First Amendment thereto as fully executed on December 6, 2016, and recorded at document #20160666267, public records of Orange County, Florida, the Second Amendment thereto as fully executed on January 17, 2017, and recorded at document #20170046961, public records of Orange County, Florida, and the Third Amendment thereto as fully executed on December 28, 2017, and recorded at document #20180023316, public records of Orange County, Florida(the "Agreement"); WHEREAS, the parties now agree that additional time is needed under the terms and provisions of the Agreement for development of the Property; and WHEREAS, since the use and application of fees and impact fee credits is not within the purview of the CRA, the CRA is not a party to this Amendment. 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 on the Final Plans, unless otherwise indicated. Section 2. Development Approvals. Nothing herein will be construed to grant or waive on behalf of the City any development approvals that may be required in connection with the Final Plan or the Owner's development of the Property. Notwithstanding this Amendment, the Owner must comply with all applicable procedures and standards relating to the development of the Property. Section 3. Building Plan Review Fee. Section 6 of the Agreement is amended to read as follows: The parties acknowledge that, as of the date of this Fourth Amendment, construction of the horizontal development of the Initial Construction Improvements, as defined in this paragraph, has commenced. Notwithstanding anything contained herein or in the Final Plans to the contrary, provided that (i) the Owner is not then in default under any of the obligations contained in this Agreement; and (ii) only as it applies to building plans submitted for the construction of the horizontal development and the parking garages and shell buildings within the Property (the "Initial Construction Improvements"); and (iii) provided such payment is made in connection with plans submitted on or before July 2, 2019 (the "Plan Review Discount Deadline"), building and fire plan review fees for construction of the Initial Construction Improvements, currently assessed at 3/4 of 1% and '/4 of 1%, respectively, of the anticipated construction costs for such improvements, shall instead be assessed at a flat fee of $500,000.00 (the "Flat Review Fee"). The Flat Review Fee shall be payable as follows: (i) $1,000.00 of the Flat Review Fee shall be paid for each plan submitted at the time such plan is submitted to the City for review, provided such submissions are prior to the Plan Review Discount Deadline; (ii) the balance of the Flat Review Fee shall be submitted to the City on or before the date the first building permit is issued for the Property (the "Balance Payment"). $200,000.00 of the Balance Payment shall be retained by the City in a separate account and used for the City's purchase and maintenance of plan review/permit tracking software, permanent or temporary positions relating to inspections or other specific needs relating to the project to be developed on the Property. Nothing herein shall prohibit the City from using any software, employees or other items purchased with the $200,000.00 of the Balance Payment for other projects or properties in the City. The remainder of the Balance Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) Payment shall be applied and used by the City consistent with its normal procedure relating to the receipt of building and fire plan review fees. Notwithstanding anything to the contrary contained herein, the Flat Review Fee shall not be applicable and instead the then applicable standard fees shall apply in the event the building plans are not submitted on or before July 2, 2019. Section 4. Transportation Impact Fee Credits. Section 10 of the Agreement is hereby amended to read as follows: In the event the construction of Richmond Avenue, Maine Street Section 1, Ocoee Town Center Boulevard/Street B, Street C, Street A, Lake Bennett Drive Extension, Maine Street Section 2 and Maine Street Retention Pond (all as defined below) commences by March 1, 2019 and are completed and accepted by the City as public roads prior to July 2, 2019 and provided that the Owner is not then in default under any of the obligations contained in this Agreement, Owner shall be entitled to transportation impact fee credits in the total amount of$1,978,702.00 (the "Transportation Impact Fee Credits"). The amount of the Transportation Impact Fee Credits is fixed and is not based on the actual construction costs incurred relating to the construction of such improvements. The Transportation Impact Fee Credits may only be applied toward transportation impact fees that are due and payable in connection with improvements constructed on the Property and any parcel within the Target Area 2 boundary. Except as specifically set forth in this Section 10 and Section 11 of the Agreement, no additional impact fee credits will be available for the construction of any improvements on the Property. Section 5. Parks and Recreation Impact Fee Credits. Section 11 of the Agreement is hereby amended to read as follows: In the event the construction of Richmond Avenue, Maine Street Section 1, Ocoee Town Center Boulevard/Street B, Street C, Street A, Lake Bennett Drive Extension, Maine Street Section 2 and Maine Street Retention Pond commences by March 1, 2019 and are completed and accepted by the City as public roads prior to July 2, 2019 and provided that the Owner is not then in default under any of the obligations contained in this Agreement, Owner shall be entitled to parks and recreation impact fee credits in the total amount of$200,000.00 (the "Parks and Recreation Impact Fee Credits"). The amount of the Parks and Recreation Impact Fee Credits is fixed and is not based on the actual construction costs incurred relating to the construction of such improvements. The Parks and Recreation Impact Fee Credits may only be applied toward parks and recreation impact fees that are due and payable in connection with improvements constructed on the Property. Section 6. Construction of Richmond Avenue. Section 12 of the Agreement is hereby amended to read as follows: The Final Plans show the entire width of Richmond Avenue, a road segment with street parking and curb cuts with the right-of way running north and south adjacent to the western edge of the Property ("Richmond Avenue"). Notwithstanding what is depicted Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) on the Final Plans, Owner owns only the eastern half of Richmond Avenue (the "Eastern Half of Richmond Avenue"). The City owns, or has contracted to acquire from the adjacent owner, the western half of Richmond Avenue (the "Western Half of Richmond Avenue"). In the event the entire Richmond Avenue has not then been completed either by the adjacent owner to the west or another party, then Owner shall be responsible for the construction of the entirety of Richmond Avenue, or so much as remains to be completed. Such construction shall be in accordance with the requirements of the City and shall accommodate access points to the adjacent property to the west. In the event Owner does not then possess fee simple title to all of the Eastern Half of Richmond Avenue land, Owner, at Owner's sole cost and expense shall acquire such land prior to commencing construction. Nothing herein shall prevent Owner and the adjacent owner to the west from entering into a mutually acceptable agreement for the construction of Richmond Avenue, with such costs to be mutually agreed upon between such parties. However, in all events, the construction of Richmond Avenue must commence prior to March 1, 2019 and the entire Richmond Avenue must be completed and accepted by the City as a public road prior to issuance of the first building permit for vertical construction on the Property and in any event prior to July 2, 2019 Section 7. Construction of Maine Street Section 1. Section 14 of the Agreement is hereby amended to read as follows: The Final Plans show the extension of Maine Street, a road segment with street parking and curb cuts with the right-of-way running east and west along the northern boundary of the Property from just west of the Richmond Avenue and Maine Street intersection to just east of the Street C and Maine Street intersection ("Maine Street Section 1"). In the event Maine Street Section 1 has not then been completed by another party, then Owner shall be responsible for the construction of Maine Street Section 1, or so much as remains to be completed. Such construction shall be in accordance with the requirements of the City and shall accommodate access points to the adjacent property to the north. In the event Owner does not then possess fee simple title to all of the Maine Street Section 1 land, Owner, at Owner's sole cost and expense shall acquire such land prior to commencing construction. Nothing herein shall prevent Owner and any other party from entering into a mutually acceptable agreement for the construction of Maine Street Section 1, with such costs to be mutually agreed upon between such parties. However, in all events, the construction of Maine Street Section 1 must commence prior to March 1, 2019 and the entire Maine Street Section 1 must be completed and accepted by the City as a public road prior to issuance of the first building permit for vertical construction on the Property and in any event prior to July 2, 2019. Section 8. Construction of Ocoee Town Center Boulevard/Street B. Section 16 of the Agreement is hereby amended to read as follows: The Final Plans show the extension of Ocoee Town Center Boulevard/Street B, a road segment with a round-about connecting with Street A to the north and possibly the extension of Lake Bennett Drive to the south, with street parking and curb cuts with the right-of-way running east and west along the southern boundary of the Property from just Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) west of the Richmond Avenue and Ocoee Town Center Boulevard intersection to the intersection with Street C ("Ocoee Town Center Boulevard/Street B"). In the event Ocoee Town Center Boulevard/Street B has not then been completed by another party, then Owner shall be responsible for the construction of Ocoee Town Center Boulevard/Street B, or so much as remains to be completed. Such construction shall be in accordance with the requirements of the City and shall accommodate access points to the adjacent property to the south. In the event Owner does not then possess fee simple title to all of the Ocoee Town Center Boulevard/Street B land, Owner, at Owner's sole cost and expense shall acquire such land prior to commencing construction. Nothing herein shall prevent Owner and any other party from entering into a mutually acceptable agreement for the construction of Ocoee Town Center Boulevard/Street B, with such costs to be mutually agreed upon between such parties. However, in all events, the construction of Ocoee Town Center Boulevard/Street B must commence prior to March 1, 2019 and the entire Ocoee Town Center Boulevard/Street B must be completed and accepted by the City as a public road prior to issuance of the first building permit for vertical construction on the Property and in any event prior to July 2, 2019. Section 9. Construction of Street C. Section 18 of the Agreement is hereby amended to read as follows: The Final Plans show Street C, a road segment with street parking and curb cuts with the right-of-way running northeast and southwest along the eastern boundary of the Property from the intersection with Street B to the intersection with Maine Street Section 1 ("Street C"). In the event Street C has not then been completed by another party, then Owner shall be responsible for the construction of Street C, or so much as remains to be completed. Such construction shall be in accordance with the requirements of the City. In the event Owner does not then possess fee simple title to all of the Street C land, Owner, at Owner's sole cost and expense shall acquire such land prior to commencing construction. Nothing herein shall prevent Owner and any other party from entering into a mutually acceptable agreement for the construction of Street C, with such costs to be mutually agreed upon between such parties. However, in all events, the construction of Street C must commence prior to March 1, 2019 and the entire Street C must be completed and accepted by the City as a public road prior to issuance of the first building permit for vertical construction on the Property and in any event prior to July 2, 2019. Section 10. Construction of Street A. Section 20 of the Agreement is hereby amended to read as follows: The Final Plans show Street A, a road segment with street parking and curb cuts with the right-of-way running north and south within the interior of the Property from the round-about portion of Ocoee Town Center Boulevard/Street B to the intersection with Maine Street Section 1 ("Street A"). Owner shall be responsible for the construction of Street A. Such construction shall be in accordance with the requirements of the City. The construction of Street A must commence prior to March 1, 2019 and the entire Street A must be completed and accepted by the City as a public road prior to issuance Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) of the first building permit for vertical construction on the Property and in any event prior to July 2, 2019. Section 11. Construction of Lake Bennett Drive. Section 22 of the Agreement is hereby amended to read as follows: The Final Plans provide for two proposed locations for the future Lake Bennett Drive extension: (i) south from the round-about within Ocoee Town Center Boulevard/Street B to the existing road north of the RaceTrac parcel, and (ii) southwest from the intersection of Street B and Street C to the existing road north of the RaceTrac parcel (the final determined location for such road referred to herein as the "Lake Bennett Drive Extension"). The City shall ultimately determine the final location of the Lake Bennett Drive Extension, with the understanding that preference shall be given to option (ii) above. The City shall advise Owner as soon as possible if option (i) is selected, however, the City shall not have the right to select option (i) in the event Owner has commenced the design and permitting of Lake Bennett Drive Extension pursuant to option (ii). In the event the Lake Bennett Drive Extension has not then been completed by another party and the City then owns the Lake Bennett Drive Extension land or has a commitment from the owner thereof to convey the same within ninety(90) days of a request by the City, then Owner shall be responsible for the design, engineering and construction of Lake Bennett Drive Extension, or so much as remains to be completed. Such construction shall be in accordance with the requirements of the City. In the event at the time Owner is prepared to commence construction on the Property and the City does not own the Lake Bennett Drive Extension or does not have a commitment from the owner thereof to convey the same within ninety(90) days of a request by the City, Owner shall have no obligation to construct the Lake Bennett Drive Extension. Nothing herein shall prevent Owner and any other party from entering into a mutually acceptable agreement for the construction of Lake Bennett Drive Extension, with such costs to be mutually agreed upon between such parties. However, provided that the City then owns the Lake Bennett Drive Extension land or has a commitment from the owner thereof to convey the same within ninety(90) days of a request by the City, the construction of Lake Bennett Drive Extension must commence prior to March 1, 2019 and the entire Lake Bennett Drive Extension must be completed and accepted by the City as a public road prior to issuance of the first building permit for vertical construction on the Property and in any event prior to July 2, 2019. Section 12. Construction of Maine Street Section 2. Section 23 of the Agreement is hereby amended to read as follows: In order to accommodate the development of the Property for its intended use and to alleviate traffic concerns in the area and in lieu of contributing to or making necessary improvements to Bluford Avenue, Owner shall be responsible for the extension of Maine Street from the eastern edge of Maine Street Section 1 east to Blackwood Avenue (the final determined location for such road referred to herein as the "Maine Street Section 2"). Owner shall be responsible for the design, engineering and construction of Maine Street Section 2, or so much as remains to be completed. Such construction shall Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) be in accordance with the requirements of the City. In the event Owner and City do not then possess fee simple title to all of the Maine Street Section 2 land, Owner, at Owner's sole cost and expense shall acquire such land prior to commencing construction. The construction of Maine Street Section 2 must commence prior to March 1, 2019 and the entire Maine Street Section 2 must be completed and accepted by the City as a public road prior to issuance of the first building permit for vertical construction on the Property and in any event prior to July 2, 2019. Section 13. Ratification of Prior Agreements. Except as amended hereby, the Agreement remains unchanged and in full force and effect, and each of the parties hereto hereby ratifies and confirms the terms and conditions of the Agreement. All references herein to the Agreement shall refer to the Development and Economic Incentive Agreement for City Center West Orange Phase 1, as amended by this Fourth Amendment, unless the text or context indicates otherwise. In the event of any conflict between the Agreement and this Amendment it is agreed that this Amendment shall control. Section 14. 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 15. 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 16. 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 17. Effective Date. The Effective Date of this Amendment shall be the day this Amendment is last executed by a party hereto and such date shall be inserted on Page 1 of this Amendment. [THE BALANCE OF THIS PAGE IS INTENTIONALLY BLANK] Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) 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 OWNER: in the presence of: CBPW CORPORATION, a Nevada Corporation By: Print Name: Title: Print Name Print Name STATE OF COUNTY OF I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared , as of CBPW CORPORATION, a Nevada corporation, who F 1 is personally known to me or F 1 produced as identification, and that he/she acknowledged executing the same on behalf of said Company 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 , 2018. 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): Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) Signed, sealed and delivered OWNER: in the presence of: MAINE BOULEVARD II,LLC, a Florida limited liability company By: Print Name: Title: Print Name Print Name STATE OF COUNTY OF I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared , as of MAINE BOULEVARD II, LLC, a Florida limited liability company, who F 1 is personally known to me or 1 produced as identification, and that he/she acknowledged executing the same on behalf of said Company 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 , 2018. 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): Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1) Signed, sealed and delivered CITY: in the presence of: CITY OF OCOEE,FLORIDA By: Print Name: Rusty Johnson,Mayor Attest: Melanie Sibbitt, City Clerk Print Name (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE,FLORIDA. COMMISSION AT A MEETING HELD ON Approved as to form and legality this , 201_ day of ,201_. UNDER AGENDA ITEM NO. SHUFFIELD,LOWMAN& WILSON,P.A. 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 RUSTY JOHNSON and MELANIE SIBBITT, 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 , 2018. 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): Fourth Amendment DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT (City Center West Orange Phase 1)