Item 04 Approval of the Sixth Amendment to the Development and Economic Incentive Agreement for City Center West Orange – Phase 1 ocoee
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AGENDA ITEM COVER SHEET
Meeting Date: November 5, 2019
Item #
411113) Reviewed By:
Contact Name: Michael Rumer, Develop Department Director:
Services Director
Contact Number: Ext. 1018 City Manager:
Subject: Sixth Amendment to Development and Economic Incentive Agreement; City Center
West Orange (CCWO); 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, MB II, the City of Ocoee, and the Ocoee CRA, for the development of City Center
West Orange.
Subsequent to the execution of the Development and Economic Incentive Agreement, which was on September
20, 2016, CBPW acquired the property 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 and by this
Amendment. Additionally, the First Amendment to Development and Economic Incentive Agreement was
approved and executed at the December 6, 2016, City Commission meeting which amended Section 10 of the
Development and Economic Incentive 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 provided for the expiration dates for ground-breaking to
be extended 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
the Target Area 2.
A Third Amendment to the Development and Economic Incentive Agreement was approved on December 19,
2017, City Commission meeting, which provided for the extension of the expiration dates for site development
completion from December 30, 2017, to July 2, 2018, on all properties associated with the City Center West
Orange development within the Target Area 2. On June 19, 2018, and July 17, 2018, the City Commission voted
to extend time under the agreement.
In 2018, the developer created a Community Development District (CDD) on all of the City Center West Orange
Lands. The CDD will repay the developer for infrastructure improvements made to date and other improvements
going forward.
A Fourth Amendment to the Development and Economic Incentive Agreement was approved on September 18,
2018 that extended the expiration dates for Building Permit submittal from July 2, 2018, to September 18, 2019,
and construction completion of Maine Street Section 2 date from July 2, 2018, to September 18, 2019. During
discussions with the developer on the Fourth Amendment to the Development and Economic Incentive
Agreement, City staff requested the consultant (GAI Community Solutions Group), who aided in crafting the
original Economic Incentive Agreement, review the proposed delay of the project start dates for impacts to the
Incentive Agreement. Per the memorandum dated August 23, 2018, the delay in the project completion date will
not negatively burden or add risk to the City or Community Redevelopment Agency(CRA)with respect to providing
incentives based on the criteria stipulated in the agreement. Also, the consultant disclosed that because of the
progress in infrastructure constructed to date, the property values of the development are being assessed at a
higher taxable value than when the agreement went into effect, resulting in increased property tax collection with
no offset in paying a percentage back as an incentive.
A Fifth Amendment was approved on March 19, 2019, in response to the developer's request to make changes
to Section 6 of the Development and Economic Incentive Agreement to clarify and modify how the flat building
permit fee of $500,000 will be paid to the City. As amended in the Fifth Amendment, Section 6 specified that a
fixed amount of $55,000 would be paid to the City at the time the building permit is issued for foundation
construction; a fixed fee of $110,000 will be paid to the City at the time the parking garage building permit is
issued, and the developer will make a payment of$335,000 to the City at the time the building permits are issued
for building shells. The Amendment also changed the flat fee of$200,000 for payment into an escrow account to
pay for project oversight to retaining 40% of each building fee payment. Section 6 also clarified to provide that, in
the event that any construction plans are not submitted on or before September 18, 2019, the City's standard fees
will apply instead of the fee schedule presented in this Section. The amendment also changed the default dates
identified in Section 7 for deferral of payment of Sewer and Water Capital Charges and Section 9 for deferral of
payment of Transportation Impact Fees from April 1, 2019 to October 1, 2020.
The proposed Sixth Amendment is a final request from the Developer to meet deadlines associated with the
Fourth and Fifth Amendments for compliance with Building Permit issuance and Certificate of Occupancy for the
City Center Development. As summarized in the above descriptions, the default dates are September 18, 2019,
and October 1, 2020, with a Water and Sewer Capital charge deferment being extended until October 1, 2022
(Section 5). The Developer is requesting this final extension of one (1) year for each as financing for the
Community Development District will be paid in full by February 2020.
CCWO has provided a schedule that will consist of finishing the Building plans for Building A-J, construction of
the lakefront road in November 2019. Construction will start in February 2020, for the completion of the road
extension for the remaining unimproved Maine Street to Blackwood Avenue, and the Foundation work for Building
A-J will start construction by February 2020. Most of the horizontal development has commenced, and upon
meeting with CCWO, staff accepts the extension for one (1) final year as the City is not subject to any increased
financial obligations associated with the delays. However, the delays in the timing of the deferrals for water and
sewer capital charges are subject to cost increases of around 3% per year. Since the water and sewer capital
charges will be paid only upon a performance threshold being achieved and since the agreement calls for only
using a portion of the County's increment, the City will not endure a financial impact due to the extension.
Issue: Should the Honorable Mayor and City Commissioners approve a Sixth Amendment to the CCWO
Development and Economic Incentive Agreement, to move all default dates from the Fourth and Fifth Amendment
out one (1) year?
Recommendation: Staff respectfully recommends that the Honorable Mayor and City Commissioners approve
the Sixth Amendment to Development and Economic Incentive Agreement for City Center West Orange.
Attachments: Sixth 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 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
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
RETURN TO:
City Clerk
CITY OF OCOEE
150 N.Lakeshore Drive
Ocoee,FL 34761 For Recording Purposes Only
(407)656-2322
SIXTH AMENDMENT TO DEVELOPMENT AND
ECONOMIC INCENTIVE AGREEMENT
(City Center West Orange Phase 1)
THIS SIXTH AMENDMENT TO DEVELOPMENT AND ECONOMIC
INCENTIVE AGREEMENT (this "Amendment") is made and entered into as of the
day of , 2019, 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, the Third Amendment
thereto as fully executed on December 28, 2017, and recorded at document #20180023316, the
Fourth Amendment thereto as fully executed on September 18, 2018, and recorded at document
#20180604048, public records of Orange County, Florida, and the Fifth Amendment thereto as
fully executed on March 19, 2019, and recorded at document #20190170129, public records of
Orange County, Florida(collectively the "Agreement");
WHEREAS, on , 2019, the City Commission voted to extend time
under the Agreement; and
WHEREAS, the parties agree that the terms and provisions of the Agreement should be
formally amended to allow additional time 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 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
September 18, 2020 (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 1/4 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 described in (i), (ii) and (iii), below,
provided such submissions are prior to the Plan Review Discount Deadline: (i) a
$55,000.00 Payment shall be made to the City at the time the building permit is issued by
the City for foundation construction; (ii) a $110,000.00 Payment shall be made to the City
at the time the building permit is issued by the City for the parking garage; and (iii) a
$335,000.00 Payment shall be made to the City at the time the building permit is issued
for the shell building and interior construction. Upon receipt of each Payment, 40% of
each Payment shall be retained by the City in a separate account and used for the City's
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DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
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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 any portion of a Payment, including
the 40% of the Payment retained in a separate account, for other projects or properties in
the City. The remainder of the any 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 to
any construction plans not submitted to the City on or before the Plan Review Discount
Deadline, in accordance with this Section.
Section 4. Deferral of Payment of Sewer and Water Capital Charges. Section 7
of the Agreement is amended to read as follows:
Notwithstanding anything contained herein or in the Final Plans to the contrary, provided
that the Owner is not then in default under any of the obligations contained in this
Agreement and only as it applies to development of the Initial Construction
Improvements, the applicable Sewer and Water Capital Charges that are required in
connection with the Initial Construction Improvements that are due and payable pursuant
to the Code of Ordinances of the City at the time a building permit is issued shall instead
be due and payable on the date of issuance of a temporary or the final certificate of
occupancy/certificate of completion for such improvements and, if at such time the
amounts generated are sufficient, paid out of the Tax Increment Recapture (as defined in
Section 8 of the Agreement) generated from the Property up to the Tax Increment Cap (as
defined in the Agreement). In the event there is not sufficient Tax Increment Recapture
available to pay the applicable Sewer and Water Capital Charges within two (2) years
following the issuance of the first temporary or the final certificate of
occupancy/certificate of completion for the Initial Construction Improvements, Owner
shall pay on its own the applicable Sewer and Water Capital Charges that are required in
connection with the Initial Construction Improvements that are due and payable in such
two (2) year period. However, the City shall reimburse Owner for any payments toward
Sewer and Water Capital Charges paid for by Owner out of the Tax Increment Recapture
received following such two (2) year period. Notwithstanding the foregoing, such
payments to Owner shall only be made in the event the Tax Increment Recapture at such
time exceeds the amount of applicable Sewer and Water Capital Charges paid by the City
out of the Tax Increment Recapture.
Under no circumstances shall the City be obligated to issue a temporary or final
certificate of occupancy/certificate of completion for any improvements constructed on
the Property until the applicable Sewer and Water Capital Charges for such improvement
are paid. For improvements on the Property other than the Initial Construction
Improvements (including, but not limited to, any applicable upcharge for uses beyond a
retail shell), Sewer and Water Capital Charges shall be due and payable in amounts and
pursuant to the timing set forth in the Code of Ordinances of the City. Notwithstanding
anything to the contrary contained herein, the deferral and payment of Sewer and Water
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DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
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Capital Charges shall not be applicable in the event a temporary or final certificate of
occupancy/certificate of completion for such improvements is not issued on or before
April 2, 2022, the Tax Increment Cap has been reached, or the Recapture Period (as
defined in the Agreement) has expired. The City Manager may, in his/her sole and
absolute discretion, grant the Owner one (1)- six (6) month extension beyond the date
provided in this Section; provided, however, that no time extension granted by the City
Manager shall extend beyond October 1, 2022.
Section 5. Deferral of Payment of Transportation Impact Fees. Section 9 of the
Agreement is amended to read as follows:
Notwithstanding anything contained herein or in the Final Plans to the contrary, provided
that the Owner is not then in default under any of the obligations contained in this
Agreement and only as it applies to development of the Initial Construction
Improvements, transportation impact fees that are required in connection with the Initial
Construction Improvements that are due and payable pursuant to the Code of Ordinances
of the City at the time a building permit is issued shall instead be due and payable on the
date of issuance of a temporary or the final certificate of occupancy/certificate of
completion for such improvements.
Once the Transportation Impact Fee Credits as described in Section 10 of the Agreement
is exhausted, under no circumstances shall the City be obligated to issue a temporary or
final certificate of occupancy/certificate of completion for any improvements constructed
on the Property until the applicable impact fees for such improvement are paid. At all
times school, police and fire impact fees shall be due and payable in amounts and
pursuant to the timing set forth in the Code of Ordinances of the City. For improvements
on the Property other than the Initial Construction Improvements (including, but not
limited to, any applicable upcharge for uses beyond a retail shell), transportation impact
fees shall be due and payable in amounts and pursuant to the timing set forth in the Code
of Ordinances of the City. Notwithstanding anything to the contrary contained herein, the
deferral of transportation impact fees shall not be applicable in the event a temporary or
final certificate of occupancy/certificate of completion for such improvements is not
issued on or before April 1, 2022. The City Manager may, in his/her sole and absolute
discretion, grant the Owner one (1)- six (6) month extension beyond the date provided in
this Section; provided, however, that no time extension granted by the City Manager shall
extend beyond October 1, 2022.
Section 6. 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, 2018 and are completed and accepted by the City as public roads prior to
September 18, 2020 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
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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 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 7. 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, 2018 and are
completed and accepted by the City as public roads prior to September 18, 2020 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 8. 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 Sixth 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 9. 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.
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DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
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Section 12. 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]
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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 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 , 2019.
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):
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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 , 2019.
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):
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DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
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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 , 2019 UNDER
day of ,2019. 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 , 2019.
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):
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DEVELOPMENT AND ECONOMIC INCENTIVE AGREEMENT
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