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HomeMy WebLinkAboutItem III (E) Approval and Authorization for Mayor and City Clerk to execute Developer's Agreement - Johio Meadows Limited Partnership for Weston Park upon receipt of a signed Joinder and Consent AGENDA 3-1-94 Item III E MEMORANDUM DATE: February 25, 1994 TO: The Honorable Mayor and Board of City Commissioners FROM: Montye E. Beamer, Director Administrative Services SUBJECT: Developer's Agreement-Johio Meadows Limited Partnership (Weston Park) Weston Park received final engineering approval from the City Commission on May 18, 1993. Pursuant to Article IX of the Ocoee Land Development Code, a Final Certificate of Concurrency was issued on May 17, 1993. For traffic circulation, this certificate expired on August 16, 1993. An application for a second Final Certificate of Concurrency (traffic only) was received October 7, 1993; it was issued on October 11, 1993 and expired on January 10, 1994. On February 14, 1994 an attempt was made to obtain a third Final Certificate of Concurrency for traffic circulation. However, the adopted Concurrency Management system requires the Development Administrator to assess all applications against (1) existing conditions as described in Attachment 9-1 (Article IX, Ocoee Land Development Code), (2) the Infrastructure Deficiencies Map and (3) the projected impacts from approved but unbuilt development. In reviewing these three components as is routinely done for all applications, Silver Star Road from Clarke to Good Homes was found to have insufficient road capacity to handle the trips originating or terminating in Weston Park. Such development restrictions allow no building permits to be issued. There is, however, some relief to this restriction as outlined in Article IX, Section 9-6. A Developer's Agreement may be written so that permits may be pulled but certificates of occupancy may not be issued until the deficiency no longer exists. This affects only those Weston Park permits pulled after the execution of the agreement; there is no restriction on any building permit issued before January 10, 1994. Proposed changes to Article IX should alleviate this deficient road segment; the modifications will be heard in Public Hearing by the Local Planning Agency on March 8, 1994 and by the City Commission March 15, 1994 (first reading) April 5, 1994 (second reading). C The Honorable Mayor and Board of City Commissioners February 25, 1994 Page Two Understanding the situation and the remedy, the developer requested the preparation of this agreement. The City Attorney prepared the attached document. Because of a mortgage there must be a joinder and consent signed by the mortgagee;execution of the Developer's Agreement by the City Commission must be contingent upon this approval by that lending institution. Staff recommends approval of the Developer's Agreement including the Joinder and Consent. Action Requested The Mayor and City Commission (1) approve the Developer's Agreement for Johio Meadows Weston Park) and (2) authorize the Mayor and City Clerk to execute the agreement upon receipt of the signed Joinder and Consent. MEB/jbw W P60\DOCS\WaeroN \cmaa U2/25/94 12:51 f/407 648 1743 FOLET & LARDNER 4003/008 TEIS INSTRUMENT PREPARED BY AND SHOULD DE RSA TO: Steven W. Se1Jc d.tz, Esq. Assistant City Attorney c/o Paley & Lardner 111 N. Orange Avenue Smits 1800 Orlando, Florida 32801 (407)423-7656 QLOPER'S AGREE THIS DEVELOPER'S AGREEMENT (this "Agreement") is made and entered into this day of , 1994, by and between the CITY OF OCOEE, a Florida municipal corporation (hereinafter referred to as the "City") and JDSIO MEADOWS LIMITED PARTNERBfIP, a Florida limited partnership (hereinafter referred to as the "Developer") . WITHESSETH: WHEREAS, the Developer is the developer of "Weston Park" (formerly Tohio Meadows) as more particularly described in the Plat of Weston Park recorded in Plat Book 31, Page 149, Public Records of Orange County, Florida and owns fee simple title to certain platted lots within Weston Park as more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof ("the Property") ; and WHEREAS, the City issued Final Certificate of Concurrency No. 06-FCC-93 with respect to Weston Park on May 17, 1993 which provided, among other things, that the certificate would expire with regard to traffic circulation on August 16, 1993; and WEEREAS, Final Certificate of Concurrency No. 06-FCC-93 expired with regard to traffic circulation on August 16, 1993; and magas, the City issued Final Certificate of Concurrency No. 12-FCC-93 on October 11, 1993 with regard to Weston Park which provided, among other things, that the certificate would expire with regard to traffic circulation on January 10, 1994; and WHEREAS, Final Certificate of Concurrency No. 12-FCC-93 expired on January 10, 1994 with respect to traffic circulation; and WHEREAS, the Developer has applied for a Final Certificate of Concurrency for the Property with respect to traffic circulation, but has been denied such certificate because there is insufficient transportation capacity under the City's Concurrency Management System with regard to Silver Star Road (the segment from Clark Road to Good Homes Road) ; and u2'25,'94 1_:52 $`4O7 648 1743 FOLEY & LARDNER OU4'008 WHEREAS, the Developer desires to obtain building permit(s) in connection with the development of the Property notwithstanding the Developer's inability to obtain a Final Certificate of Concurrency for traffic circulation; and WHEREAS, pursuant to Section 9-6(A) of the Land Development Code, the City may issue building permit(s) for the Property subject to the condition that there shall be no occupancy and no Certificate(s) of Occupancy shall be issued for any structure constructed pursuant to any such building permits unless and until the deficiency with regard to traffic circulation is cured and a Final Certificate of Concurrency is issued by the City, subject to the terms and conditions hereinafter set forth. WOW, THEREFORE, in consideration of the premises, and other good and valuable consideration exchanged between the parties hereto, the receipt and sufficiency of which is hereby acknowledged, the. City and Developer do hereby agree as follows: 1. The parties hereby mutually represent and agree that the foregoing recitals are true and correct, and are hereby adopted and incorporated herein as part of this Agreement by this reference. 2. The City agrees to review and take action upon applications for building permits submitted by Developer or Developer's representative for the Property provided, however, there shall be no occupancy of any structure and no Certificate of Occupancy shall be issued for any structure constructed pursuant to any such building permit unless and until the Developer obtains a Final certificate of Concurrency for traffic circulation with respect to the portion of the Property for which any such building permit has been issued, all in accordance with the terms and provisions of Article IX of the Ocoee Land Development Code, as it may be amended from time to time. 3. Each building permit issued pursuant to this Agreement shall include a provision that such building permit is subject and subordinate to this Agreement and each building permit shall also have a copy of this Agreement attached to the building permit as an exhibit. 4. Except as expressly set forth herein, the Developer and the Property remain subject to all provisions of the City of Ocoee Code of Ordinances and Land Development Code. Except as expressly set forth herein, this Agreement shall in no way be construed as to be a waiver or variance of any kind whatsoever from the terms and provisions of the city of Ocoee Code of Ordinances and Ocoee Land Development Code. 5. The parties acknowledge and agree that this Agreement shall in no way be construed as to provide the Developer with an entitlement to a Final Certificate of Concurrency as required by Article IX of the Ocoee Land Development Code and that the City has made no representations with respect thereto. - 2 - UY: 25,'114 12:a:: iT4U7 643 1743 rULtY :4 LtU14.1WNER UUo:UUtf 6. The parties acknowledge the City has on file Developer's application for a Final Certificate of Concurrency, dated February 14, 1994 and that the Developer has been placed on the Capacity Waiting List pursuant to Section 9-7 (I) of the Ocoee Land Development Code. 7. The Developer acknowledges and agrees that it is proceeding at its own risk and that the Developer hereby assumes all risk and liability, and the City shall in no way be responsible or liable for any losses incurred by Developer, in connection with (a) the issuance of building permits subject to the terms and conditions of this Agreement and/or (b) the Developer's inability to obtain a Final Certificate of Concurrency for the Property. 8. The City reserves the right from time to time to make additional traffic circulation concurrency evaluations with respect to the Property. In the event any such traffic circulation concurrency evaluation indicates that additional traffic circulation deficiencies exist, then the City reserves the right, in its sole and absolute discretion, to unilaterally amend this Agreement to reflect such additional traffic circulation deficiency, which deficiency must be cured prior to the issuance of any Certificates of Occupancy for the Property for which building permits have been issued pursuant to this Agreement. 9. Developer hereby agrees to indemnify and save the City harmless from and against any and all losses, costs, expenses, claims, damages, judgments, liabilities and causes of action of any kind whatsoever including reasonable attorneys' fees and paralegal fees, both at trial and appellate levels, arising out of or alleged to have arisen out of or been occasioned by, in whole or in part, the City's failure to issue a Certificate of Occupancy for any structure for which a building permit may hereafter be issued pursuant to this Agreement. 10. This Agreement shall inure to the benefit of the heirs, legal representatives, successors and assigns of the parties, and shall run with the Property and be binding upon the heirs, legal representatives, successors and assigns of the parties and upon any person, firm, corporation or entity who may become the successor-in-interest to the property. 11. This Agreement and the provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida. 12. Any notice delivered with respect to this Agreement shall be in writing and shall be deemed to be delivered (whether or not actually received) when (a) hand delivered to the person hereinafter designated, or (b) upon receipt of such notice when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the person at the address set forth opposite the parties name below, or such other addressed or to such other person as the party shall have specified - 3 U1/25. 94 1.':.53 tr4U7 643 .1.743 11UL.LY do L.ARDNER it,UUO 'UU4 by written notice to the other party delivered in accordance herewith: City: City of Ocoee 150 North Lakeshore Drive Ocoee, Florida 32761 Attention: City Manager Developer: Mr. Gary Singer, President Unibilt Development Company 6305 Westwood Blvd. , #200 Orlando, FL 32821 13. 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 as separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereof. 14. 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. 15. The right of the Developer to obtain building permits pursuant to this Agreement shall terminate on the earlier of (a) the date of issuance of a Final Certificate of Concurrency for the Property, or (b) six (6) months from the date of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their duly authorized officers and their respective seals to be affixed hereto as of the day and year first above written. APPROVED: ATTEST: CITY OP OCOBE, FLORIDA By: Jean Grafton, City Clerk S. Scott Vandergrift, Mayor (SEAL) - 4 - 02/23;94 12:33 V407 d4S 1743 FOLEY & LARDNER t007/0OS FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY TSE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING APPROVED AS TO FORM MD LEGALITY HELD ON , 1994 this day of , 1994. UNDER AGENDA ITEM NO. FOLEY & LARDNER By: (CORPORATE SEAL) City Attorney JOHIO MEADOWS LIMITED PARTNERSHIP, a Florida limited WITNESSES: partnership By: U'NIBILT DEVBLOPXENT Name: COMPANY, a Florida corporation, as managing general partner Name: By:. Gary Singer, President STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this day of , 1994, by S. SCOTT VVA1IDERGRIFT, the Mayor of the CITY OP OCOEE and JEAN GRAFTON, the City Clerk of CITY OF OCOBE, a Florida municipal corporation, on behalf of the corporation. such persons (notary must check applicable box) ❑ is/are personally known to me. ❑ produced a current Florida driver's license as identification. ❑ produced as identification.. {Notary Seal must be affixed} Signature of Notary Name of Notary (Typed, Printed or Stamped) I Commission Number (if not legible on seal) : — My Commission 3xpi.res (if not legible on seal): • — 5 — Ute'L5i 114 iY:54 'CT4U7 648 1743 ±ULEY & LARDNER UUb-OUH STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this day of , 1994, by GARY SINGER, the President of QPIHILT DEvELOPMNST COMPANY, a Florida corporation, on behalf of the corporation which is Managing General Partner of JOHIO MEADOWS LIMITED PARTNERSHIP, a Florida limited partnership, on behalf of the partnership. Such person (notary must check applicable box) ❑ is/are personally known to me. ❑ produced a current Florida driver's license as identification. O produced as identification. (Notary Seal must be affixed} Signature of Notary Naue of Notary (Typed, Printed or Stamped) • commission Number (if not legible on seal): --- My My Commission Expires (if not legible on seal): • • ermisommmexeranocommeirmsmeammomemmezmm - 6 - SENT BY: 2-25-94 : 3:11P11 4KER11AN. SENTERF I TT-- 407 656372:5;;; 2/ EXHIBIT "A" LOTS 1 THROUGH 30 INCLUSIVE AND LOTS 32 THROUGH 39 INCLUSIVE AND LOTS 41 THROUGH 44 INCLUSIVE, AND LOTS 47 through 72 INCLUSIVE, ALL OF THE FOREGOING BEING OF THE PLAT OF WESTON PARK, AS RECORDED IN PLAT BOOK 31, PAGE 149, PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA. LOT 40 OF THE PLAT OF WESTON PARK, AS RECORDED IN PLAT BOOK 31, PAGE 149, PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA IS ALSO INCLUDED IN THE DEFINITION OF "PROPERTY" UNDER THIS DEVELOPER'S AGREEMENT. LOT 40 IS OWNED BY OLYMPIA HOMES, INC. , A FLORIDA CORPORATION ("OLYMPIA") AND BY EXECUTING THIS EXHIBIT "A" WHERE INDICATED BELOW OLYMPIA JOINS IN, CONSENTS TO, IS A PARTY TO AND AGREES TO ABIDE BY THE TERMS OF THIS DEVELOPER'S AGREEMENT WITH RESPECT TO LOT 40. Agreed to and accepted by: OLYMPIA HOMES, INC. , A FLORIDA COROPRATION By: Joe Kantor, President STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this day of , 1994 by Joe Kantor as President of Olympia Homes, Inc. , a Florida corporation, on behalf of the corporation. He is personally known to me or produced a Florida Drivers License as identification (circle one) . Notary seal must be affixed Sign` ature of Notary Name of Notary (Typed, printed or stamped) Commission Number (if not legible on seal) My Commission Expires (if not legible on seal)