Item 05 Approval of Disaster Debris Alternate Site and Continued Use Agreement for 850 Ocoee Apopka Road Mulching FacilityMeeting Date: November 1,.2022
Item #
Reviewed By:
Contact Name: Scott Cookson Department Director:
Contact Number: City Manager:
Subject: Approval of Disaster Debris Alternate Site and Continued Use Agreement for 8?-1,
Ocoee -Apopka Road
Background Summary:
850 Ocoee Apopka Road (the "Property") has been utilized . as an approved mulching business in
accordance with an approved Large -Scale Site plan and Orange County Environmental Protection
Permit. The Property owner has applied for and will receive a permit from the Orange County
Environmental Protection Division to continue the mulching business (the "New Permit").
The City may need an alternate site for the storage of disaster debris generated in the City following
hurricanes, tropical storms or other weather -related disasters pursuant to Section 403.7071 Florida
Statutes. In exchange for a five-year extension of the use of the Property as mulching business, the
Property Owner and the City may enter into a separate agreement for the storage of disaster debris
on the Property.
The terms of the Disaster Debris Alternate Site and Continued Use Agreement (the "Agreement") for
850 Ocoee -Apopka Road are as follows:
1. The term of the Agreement is five (5) years from the date issuance of a new Orange County
Environmental Protection Division Permit for a mulching business.
2. The Property may only be used as a mulching business in accordance with the existing site
plan and the New Permit and shall not be used for any other purpose. The Property shall
comply with the other zoning and subdivision regulations of the City as set forth in the Code of
Ordinances and the Ocoee Land Development Code, as may from time to time be amended.
3. At the termination of the temporary use, the mulching business must cease and the Property
may be used thereafter only for a purpose that is permitted in the respective overlay.
4. On or before six (6) months from the effective date of the Agreement, the Property Owner, at
the Property Owner's sole cost and expense, agrees to (i) install operational fire hydrant(s) in
the location(s) approved by staff of the City; and (ii) install irrigation and landscaping along the
berm fronting Ocoee -Apopka Road consistent with a landscaping plan reasonably approved by
staff of the City.
Issue:
Should the Mayor and Commission approve the Disaster Debris Alternate Site and Continued Use
Agreement?
Recommendations:
The City Attorney and Staff recommend that the Mayor and Commission approve the Disaster Debris
Alternate Site and Continued Use Agreement.
Attachments:
Disaster Debris and Continued Use Agreement
Financial Impact:
N/A
Type of Item: (please mark with an 'V)
Public Hearing
Ordinance First Reading
Ordinance Second Reading
Resolution
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.
Reviewed by
Assistant City Attorney Drage 10/26/2022
For Clerk's Dept Use:
Consent Agenda
Public Hearing
Regular Agenda
N/A
N/A
N/A
1A
DISASTER DEBRIS ALTERNATE SITE
AND CONTINUED USE AGREEMENT
(850 Ocoee -Apopka Road - Mulching Facility)
THIS DISASTER DEBRIS ALTERNATE SITE AND CONTINUED USE
AGREEMENT (this "Agreement") is made and entered into as of the day of
, 2022, by and between CITY OF OCOEE, a Florida municipal
corporation existing under the laws of the State of Florida, whose mailing address is 1 N. Bluford
Ave., Ocoee, Florida 34761, Attention: City Manager (the "City") and THOMAS SCOTT
WEST, whose address is 324 E. Orlando Ave., Ocoee, FL 34761-2900 (the "Owner").
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 by this reference made a part hereof
(hereinafter referred to as the "Property"); and
WHEREAS, in protecting the health, safety and welfare of the citizens of Ocoee the City
has identified the Property as a potential alternate site for the storage and management of disaster
debris generated in the City following hurricanes, tropical storms or other weather -related
disasters; and
WHEREAS, Owner has expressed a willingness to have the City utilize the Property as
an alternate site for the storage and management of disaster debris in the event there is a
subsequent need; and
WHEREAS, the mulching business previously operating on the Property did so under a
City approved site plan, and under an Orange County Environmental Protection Division Permit
(the "Prior Permit"); and
WHEREAS, subsequent to the issuance of the Prior Permit, the City enacted an overlay
affecting the Property which prohibited outdoor storage; and
WHEREAS, the Owner now desires to continue the use on the Property as a mulching
business under the existing approved site plan and under a new five (5) year Orange County
Environmental Protection Division Permit (the "New Permit"); and
WHEREAS, the Owner and the City have determined that for the Property to come into
compliance with the overlay regulations would be cost prohibitive; and
WHEREAS, the Owner and City agree that, by allowing the Property to be used as a
mulching business, the City does not approve use of the Property for any other use, except as
described herein;
WHEREAS, the Owner and the City desire to execute this Agreement to evidenced
agreement on the terms and conditions of the potential use of the Property as an alternate site for
the storage and management of disaster debris and for the continued, temporary use as a
mulching business
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.
Section 2. Term. The term of this Agreement shall be from the date hereof through
five (5) years from the date of the New Permit. Owner agrees to provide to the City a copy of
the New Permit within five (5) business days of receipt thereof. Notwithstanding the foregoing,
in the event (i) Owner is in breach of this Agreement, (ii) Owner changes the use of the Property
from a mulching business, of (ii) Owner fails to timely complete the Improvements (as defined in
Section 5 below), the City shall have the right to terminate this Agreement on thirty (30) days'
notice to Owner.
Section 3. Alternate Disaster Debris Site. In the event the City determines there is
a need to utilize the Property as an alternate site for the storage and management of disaster
debris pursuant to 403.7071 Florida Statutes, Owner agrees to negotiate in good faith with the
City with respect to such use. Owner shall not be deemed to be in default of this Agreement if
the City's proposed use prevents or significantly impairs the continued use of the Property as a
mulching business or if the compensation for such use is materially below market rate for similar
uses. In the event the parties are able to reach an agreement on the use of the Property, or a
portion thereof, as an alternate site for the storage and management of disaster debris, the parties
will memorialize their agreement in a separate agreement; the execution of this Agreement shall
not be deemed an agreement for such use, only an agreement to negotiate in good faith with
respect to such use.
Section 4. Continued Use. For the term of this Agreement, the Property may be
used as a mulching business in accordance with the existing site plan and the New Permit,
notwithstanding the prohibition on outdoor storage in the current overlay. Except as otherwise
expressly set forth in an amendment to this Agreement, it is agreed that the Property shall not be
used for any other purpose and that the Property shall comply with the other zoning and
subdivision regulations of the City as set forth in the Code of Ordinances and the Ocoee Land
Development Code, as may from time to time be amended. At the termination of the temporary
use, the mulching business must cease and the Property must thereafter be used for only a
purpose that is permitted in the overlay.
Section 5. Improvements. On or before six (6) months from the date hereof, Owner,
at Owner's sole cost and expense, agrees to (i) install operational fire hydrant(s) in the
location(s) approved by staff of the City; and (ii) install irrigation and landscaping along the
berm fronting Ocoee -Apopka Road consistent with a landscaping plan reasonably approved by
staff of the City.
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Section 6. 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 7. Agreement; 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. Amendments to and waivers of the
provisions of this Agreement shall be made by the parties only in writing by formal amendment.
Section 8. 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 9. 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 10. 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 11. 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 I of this
Agreement.
Section 12. Affirmation. The Owner and City may, from time to time upon request
of the other, execute and deliver letters affirming the status of this Agreement.
SIGNATURES TO FOLLOW
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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:
Thomas Scott West
Print
Print Nam
STATE OF
COUNTY OF
I HEREBY CERTIFY that on this day, the foregoing instrument was acknowledged before me
by means of ❑ physical presence or ❑ online notarization, by Thomas Scott West who ❑ is
personally known to me or ❑ 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 52022.
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):
0
Signed, sealed and delivered
in the presence of:
Print
Print Name
CITY OF OCOEE, FLORIDA. Approved as
to form and legality this day of
, 2022.
SHUFFIELD, LOWMAN AND WILSON, P.A.
By:
City Attorney
ReqNswom
CITY:
CITY OF OCOEE, FLORIDA
In
Rusty Johnson, Mayor
Attest:
Melanie Sibbitt, City Cleric
(SEAL)
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD ON
, 2022, UNDER
AGENDA ITEM NO.
I HEREBY CERTIFY that on this day, the foregoing instrument was acknowledged
before me by means of ❑ physical presence or ❑ online notarization, 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.
WITNESS my hand and official seal in the County and State last aforesaid this
day of , 2022.
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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Exhibit "A"
14111
FROM A POINT 466.62 FT. SOUTH OF NORTHEAST CORNER OF SOUTHEAST 1/4 OF SOUTHWEST 1/4
OF SECTION 7, TOWNSHIP 22 SOUTH, RANGE 28 EAST, RUN SOUTH 86045' W 41.7 FT, TO THE W.
RIGHT OF WAY LINE OF OCOEE-APOPKA ROAD, THENCE S 1.14-E ALONG SAID W. RIGHT OF WAY LINE
383.70 FT., THENCE N 89°45'W. 173 FT., THENCE S 0-13' E 92.7 FT. MORE OR LESS, TO THE SOUTH
LINE OF; BEGIN 7.07 CH. S OF AFORESAID NE CORNER, RUN W 14.14 CH, S7.07 CH E 14.10 CH, FOR A
POINT OF BEGINNING, CONTINUE S 0013' E, 39.8 FT MORE OR LESS, TO THE N. LINE OF; BEGIN SE
CORNER OF SE 1/4 OF SW 1/4 OF SECTION 7, TOWNSHIP 22 SOUTH, RANGE 28 EAST, RUN N 5.86 CH,
W 10 CH., S 5.86 CH, E 10 CH., THENCE N 87029'E. 175 FT., MORE OR LESS TO W. RIGHT OF WAY LINE
OF OCOEE-APOPKA RD, THENCE N 1014' W ALONG SAID W RIGHT OF WAY LINE 42.54 FT, THENCE S
86045' W 174.5 FT, MORE OR LESS TO POINT OF BEGINNING, LESS THE EAST 174.5 FEET. (DEED
RECORDED IN BOOK 855, PAGE 650)
AND
BEGIN AT SE CORNER OF SE 1/4 OF SW 1/4 OF SECTION 7, TOWNSHIP 22 SOUTH, RANGE 28 EAST,
RUN NORTH 5.86 CHAINS, THENCE RUN SOUTH 87-39' WEST, THENCE RUN 205 FEET TO POINT OF
BEGINNING, 312.75 FEET APPROXIMATELY, TO THE CENTER OF THE DITCH, THENCE RUN
SOUTHEASTERLY ALONG THE CENTER LINE OF DITCH TO A POINT SOUTH 0013' EAST OF THE POINT
OF BEGINNING THENCE NORTH TO POINT OF BEGINNING. (DEED RECORDED IN BOOK 855, PAGE 653)
AND
BEGINNING 7.07 CHAINS SOUTH OF THE NORTHEAST CORNER OF SE 1/4 OF SW 1/4 OF SECTION 7,
TOWNSHIP 22 SOUTH, RANGE 28 EAST, RUN THENCE WEST 14.14 CHAINS, SOUTH 7.07 CHAINS, EAST
14.14 CHAINS NORTH 7.07 CHAINS TO BEGINNING (LESS THE SOUTH 42.54 FEET OF THE SOUTH
175.3 FEET THEREOF). ORANGE COUNTY, FLORIDA. (DEED RECORDED IN BOOK 3078, PAGE 1763)
LESS THAT PORTION DEEDED OUT IN BOOK 836, PAGE 260 AND CORRECTIVE DEED IN BOOK 905,
PAGE 279, DESCRIBED AS:
FROM A POINT 933.24 FEET SOUTH OF THE NE CORNER OF THE SE 1/4 OF SW 1/4 OF SECTION 7,
TOWNSHIP 22 SOUTH, RANGE 28 EAST, RUN SOUTH 86°45' WEST 31.63 FEET TO A POINT ON THE
WEST R/W LINE OF THE OCOEE-APOPKA ROAD FOR THE POINT OF BEGINNING; THENCE RUN SOUTH
1014' EAST 42.54 FEET ALONG SAID R/W LINE; THENCE SOUTH 87039' WEST 175.34 FEET; THENCE
NORTH 0°13' WEST 157.91 FEET; THENCE S 89145' EAST 172.55 FEET TO A POINT ON THE WEST R/W
OF OCOEE-APOPKA ROAD; THENCE S 1014' EAST 107.46 FEET TO THE POINT OF BEGINNING.
LESS THAT PORTION DEEDED OUT IN BOOK 3308, PAGE 1 DESCRIBED AS:
FROM A POINT ON THE EAST LINE OF THE SE 1/4 OF THE SW 1/4 OF SECTION 7, TOWNSHIP 22
SOUTH, RANGE 28 EAST 827.74 FEET SOUTH OF THE NORTHEAST CORNER OF SAID SE 1/4 OF THE SW
1/4, RUN NORTH 89°45' WEST ALONG THE NORTH LINE OF A PARCEL AS DESCRIBED AND RECORDED
IN O.R. BOOK 905, PAGE 279, PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA 206.44 FEET TO THE
NORTHWEST CORNER OF SAID PARCEL, THENCE ALONG THE WEST LINE AND A PROJECTION THEREOF
SOUTH 00013' EAST 259 FEET MORE OR LESS TO THE CENTER OF A DRAINAGE DITCH, THENCE ALONG
THE CENTER OF SAID DITCH SOUTH 780 MORE OR LESS EAST 210 FEET MORE OR LESS TO THE EAST
LINE OF SAID SE 1/4 OF THE SW 1/4 THENCE NORTH ALONG SAID EAST LINE 302 FEET TO THE POINT
OF BEGINNING. LESS RIGHT OF WAY FOR STATE ROAD #437.
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