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Item 05 Approval to Enter into a Development Agreement with Ocoee Corners, LLC (Boyd Development) for the Creation and Maintenance of a Linear Park Called Village Green .‘ oco.ee florlda AGENDA ITEM COVER SHEET Meeting Date: July 19, 2022 Item #: Reviewed By: 737/L Contact Name: Michael Rumer, Development Services Director Department Direct I Rumer Contact Number: Ext. 1018 City Manager: / / ! • Subject: Authorization to enter into a Development Agreement with Ocoee Corners LLC (Boyd Development) for the Creation and Maintenance of a Linear Park Called Village Green. Commission District 3, Richard Firstner Background Summary: Boyd Development who is the owner of Ocoee Corners Development which is located on the west side of Maguire Road and south of Colonial Drive (SR 50) desires to have a portion of the Property developed for a coffee shop with drive-thru on one parcel and a restaurant with drive-thru serving frozen custard, desserts and frozen treats on the other parcel. Provided that the City approves development of the Property for the Intended Use, Ocoee Corners, LLC, has agreed to provide a "linear buffering park" on the Property. This new linear park shall be developed consistent with the Village Green Concept Plan attached hereto as Exhibit "B" in the Development Agreement. The Concept Plan includes common improvements and landscaping to be shared between the two parcels which is hereinafter referred as the "Village Green Common Area". Staff is requesting this Development Agreement in order to ensure the longevity of the Parks maintenance and up keep. Should the Park fall into periods of non- maintenance or to not be properly maintained, the Agreement permits the CRA to make necessary repairs and or maintenance and invoice the Ocoee Corners POA for the maintenance costs. Issue: Should the City Commission authorize execution of a Development Agreement with Ocoee Corners, LLC, for installation and maintenance of a linear park called Village Green as part of a Site Plan for Andy's Frozen Custard and Drive-Thru Coffee establishment? Recommendations: Staff recommends that the City Commission approve of the Development Agreement implementing the Village Green Park. Attachments: Location Development Agreement Financial Impact: N/A. Type of Item: (please mark with an"x") ID Public Hearing . F9r Clerk's Dept Use: 0 Ordinance First Reading Consent Agenda 0 Ordinance Second Reading 0_ Public Hearing o Resolution D Regular Agenda o Commission Approval • Discussion&Direction El Original Document/Contract Attached for Execution by City Clerk O Original Document/Contract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by 2 4,004 ,i . . L . . -, . . 4 r r i fi s 3 a • • • • tuta _ 1 y 1 • • lT r L 'v� • r , ,' ,M I • r - i. • i' l i I • L¢ r .ti.!" 4{ yl'e ! g. r : Ai 4'. _ c �i ii R 'ice. -• ". II F ry II } , T # r ! N• • IIIt+ Maguire Road .. y. r _ __ +r • ... a r .' -�__ a. a y4 t '. . „el& ili • . . , . . .. F • • J. Poi ,.r.• _ , t, ..r I - 4 • ' '. .,,, _ I • I C.0 { , ■ r r�{ II . I I k �����@@sv�� r7L• -r ' .0\ ‘Nillit.11:".illillgiliai . i 1 1 THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Robin G.Drage,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 DEVELOPMENT AGREEMENT (Ocoee Corners, LLC) THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the day of , 2022, by and among OCOEE CORNERS, LLC, a Florida limited liability company ("Ocoee Corners") is referred to as "Owner", with an office address of 14422 Shoreside Way, Suite 130, Winter Garden, Florida 34787 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, 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 incorporated herein by this reference (hereinafter referred to as the "Property"): and WHEREAS, Owner is the developer of the Property; and WHEREAS, Owner and the City entered into that certain Settlement Agreement (the "Settlement Agreement") dated January 16, 2018 with a copy on file with the Ocoee City Clerk and incorporated herein by this reference, that included certain terms relating to the development of the Property; and WHEREAS, Owner and the City now desire to set forth certain additional teiiiis relating to the development of the Property as provided herein; and WHEREAS, since the use and application of fees and impact fee credits is not within the purview of the Ocoee Community Redevelopment Authority (the "CRA"), the CRA is not a party to this Agreement. ORLDOCS 19533975 2 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 and Definitions. The above recitals are true and correct and incorporated herein by this reference. Section 2. Development of the Property. The Property consists of two developable parcels. Owner desires to have the Property developed for a coffee shop with drive-thru on one parcel and a restaurant with drive-thru serving frozen custard, desserts and frozen treats on the other parcel (the "Intended Use"). Provided that the City approves development of the Property for the Intended Use, Owner agrees that the Property shall be developed consistent with the Village Green Concept Plan (the "Concept Plan") attached hereto as Exhibit "B" and incorporated herein by this reference. The Concept Plan includes common improvements and landscaping to be shared between the two parcels which is hereinafter referred as the "Village Green Common Area". Section 3. Property Owner's Association. Prior to a certificate of occupancy being issued for any improvements constructed on the Property for the Intended Use, Owner, at Owner's sole cost and expense, shall prepare and record an amendment to that certain Declaration of Easements Covenants and Restrictions for Ocoee Corners recorded December 3, 2021 in Instrument No. 20210739620, Public Records of Orange County, Florida (the "Center Declaration"), which shall designate the Village Green Common Area as a limited common area to be maintained by the Ocoee Corners Property Owners Association, Inc., a Florida non-profit corporation (the "POA") and shall provide the POA with all access and other easements necessary for the POA to enter upon and maintain the Village Green Common Area. In addition, the amendment shall provide that the provisions of the Center Declaration designating the Village Green Common Area as a limited common area and the maintenance obligation of the POA may not be altered or amended without the consent of the City. The amendment to the Center Declaration designating the Village Green Common Area as a limited common area shall be subject to the review and approval of the City Attorney for the City, or other designee of the City Manager of the City, such review and approval not to be unreasonably withheld, conditioned or delayed. Section 4. Maintenance. The POA shall at all times maintain the Village Green Common Area in a neat and clean manner pursuant to the Center Declaration and applicable codes and regulations of the City. Notwithstanding this obligation, the City, through the CRA shall have the right, but not the obligation, in the event of periods of non-maintenance or the appearance of non-maintenance, to make repairs and to maintain the landscape and hardscape including, but not limited to, pruning and replanting landscaping, at the POA's expense. In said event, the City, through the CRA, shall send an invoice to the POA for payment of associated costs and in the event reimbursement is not made within thirty (30) days, Owner shall be responsible for such costs and/or the City may institute a code enforcement action against the POA and the Property. ORLDOCS 19533975 2 Section 5. Future Development. In consideration of the foregoing, Owner hereby reaffirms that all future development of the Property shall be in accordance with Exhibit "D" of the Settlement Agreement. Except as expressly provided herein, nothing herein shall be deemed an amendment to or modification of the Settlement Agreement. Section 6. 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 (i) hand delivered to the other party, or (ii) when sent by overnight courier service for next business day delivery (i.e., Federal Express), addressed to the party at the address set forth 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 7. Covenant Running 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 8. Recordation of Agreement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at the Owners' expense, in the Public Records of Orange County, Florida. Section 9. 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 10. Time of the Essence. Time is hereby declared of the essence to the lawful perfoimance of the duties and obligations contained in this Agreement. Section 11. 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. All terms and provisions in the Agreement not amended herein shall remain in full force and effect. Agreements to and waivers of any of the provisions of this Agreement shall be made by the parties only in writing by formal Agreement. Section 12. Further Documentation. The parties agree that at any time following a request 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 13. Attorneys' 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, paralegal 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. ORLDOCS 19533975 2 Section 14. 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 15. 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 16. Severability. If any word, 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 so long as the purpose and intent of this Agreement can still be achieved. Section 17. Effective Date. The Effective Date of this Agreement shall be the day this Agreement is last executed by a party hereto and such date shall be inserted on Page 1 of this Agreement. SIGNATURES TO FOLLOW ORLDOCS 19533975 2 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: Ocoee Corners, LLC, a Florida limited liability company By: Print Name: Title: Print Name • Print Name STATE OF COUNTY OF The foregoing instrument was acknowledged before me by means of❑ physical presence or ❑ online notarization, this day of , 2022, by as of Ocoee Corners, LLC, a Florida limited liability corporation, on behalf of the corporation, who is personally known to me or who has produced as identification. 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): ORLDOCS 19533975 2 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,litORIDA. COMMISSION AT A MEETING HELD ON Approved as to form and legality this , 2022 UNDER day of ,2022. AGENDA ITEM NO. SHUFFIELD,LOWMAN &WILSON,P.A. By: City Attorney STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me by means of Cl physical presence or El online notarization, this day of , 2022, by 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. 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): ORLDOCS 19533975 2 EXHIBIT"A" Andy's Frozen Custard Parcel: A parcel of land being a portion of the Northeast 1/4 of Section 30. Township 22 South,- Range 28 East, Orange County, Florida and a portion of the parcel of land described in that certain Special Warranty Deed recorded in Document Number 20180392782, Public Records of Orange County, Florida. Being more particularly-described as,follows: COMMENCE at the Northeast corner of the Northeast 1/4 of said Section 30. thence South 89'31'00" West, along the North line of the Northeast 1/4 of said Section 30, a distance of 45.00 feet to a point of intersection with- the Northerly extension of the West right of way line of Maguire Road (State Road S-439) according to the certain Order of Taking recorded . In Official Records Book 9191, Page -3201. Public Records of'Orange.County, Florida; thence South 00'26'34" East, along the Northerly extension of.sald West right of way line, a distance of 110.13 feet-to a point on the South right of way line of State Road 50 • according to said certain Order of Taking; thence continue South 00'26'34" East, along said West right of way line, a distance of 192.37 feet; thence North 89'31'00" East, along said West right of way line, a :distance of 19.53 feet to a point on the West right of way line of Maguire Road according to State of Florida State Road Department Right of Way Map Section Number 75050; thence South 00'34'20" East, along said West right of way line, a distance of 71.97 feet to the POINT OF:BEGINNING; thence continue South 00'34'20" East, along said West right of way line, a distance of 159.42 feet; thence;,South 89'39'36" West a distance of 248.18 feet; thence North 40'20'24" West a distance of 20.45 feet; thence South 49'39'36" West a•distance of 14.00, feet; thence South 89'39'36" West a distance of 15.55 feet; thence North 00'20'24" West a distance of 152.75 feet; thence North 89'39'36" East a distance of 286.96 feet to the POINT OF BEGINNING Contains 1.04 acres, more or less. AND Double 0's Coffee Parcel: A parcel of land being a,portion of the Northeast 1/4 of Section 30, Township 22 South, Range 28 East, Orange County, Florida and a portion of the parcel of land described in that certain Special Warranty Deed recorded in- Document Number 20180392782, Public Records of Orange.County, Florida. Being more particularly described as follows: COMMENCE at the Northeast,corner of the Northeast 1/4 of said Section 30. thence South 89'31'00" West,- along the North line of the Northeast 1/4 Of said Section 30, a distance of 45.00 feet to -a point of intersection with the Northerly extension -of the West-right of way line of Maguire Road (State Road S-439) according to the certain Order of Taking:recorded in Official Records-Book 9191, Page 3201. Public Records of Orange County, Florida; thence South 0076'34" East, along the Northerly extension of said West right-of way.line, a distance of 110.13 feet to a point on the South right of way line of State Road 50 according to said certain Order of Taking; thence continue South. 00'26'34" East, along' said West right of way line, a distance of 192.37 feet; thence North 89'31'00" East, along said West right of way-line, -a distance of 19.53 feet to a point on the West right of way line of Maguire Road.according to"State of Florida State Road Department Right of Way.Map Section Number 75050; thence South 00'34'20" East, along said West right of way line, a distance of 231.39 feet to the POINT OF BEGINNING;- thence continue South 00'34'20" East, along said West right of way line, a distance of 140.96 feet; thence South 89'39'36" West • a distance of 251:01 feet to-a point of curvature of a curve concave Northeasterly and having a radius of 37.15 feet; thence through a delta angle of 89'59'38", run.Northerly along said curve a distance of 58.35 feet to a point of tangency; thence North 00'20'46" West a distance of 110.48 feet; thence North 89'39'36" East a distance-of-15.55 feet; thence North 49'39'36" East a distance.of 14.00 feet; thence South 40'20'24" East a distance of 20.45 feet; thence North 89'39'36" East a distance of 248.18 feet to the POINT OF BEGINNING Contains: 0.93 acres, more or less. ORLDOCS 19533975 2 EXHIBIT "B" • :lir ft" "/"`" Ipp Pb. ‘,/ ORLDOCS 19533975 2 Shared sidewalk — • stalled poor to CO.Landscaping on on '-�•— "I`sc respective sides responsibility of - d Double O's or I• - +. And✓s. '....- .. e 4011111".>".. . Ywj R` T r R►.o ,•� mOmmen + Movements and ( / Landscaping installed �• * `.., • prior to first CO 6. 4. • S • Edsting Sidewalk • ...� Rear line includes Note.Improvements not enclosed in • hedge row and red dashed line wit be constructed it.. — 'street trees.' with the respective development , •••••••• typical both sidesAffmrfoolio_.: __.,. , ,.. _ BOYD DEVELOPMENT CORPORATION Yilla e Green Concept Plan RETAIL•MVLTI•FAMILT• •Memo Use bile!1NIp,IL1 IIII Eal hsiielue tlreel.IrIee1L 1117111 N7.711.11H m.ulleNesiU.cs. � 101°" ORLDOCS 19533975 2