Item #05 Approval of Fifth Amendment to Ground Lease Agreement for Forest Lake Golf Course
AGENDA ITEM COVER SHEET
Contact Name:
Contact Number:
Charles K. Smith, P.E.
407 -905-3159
Meeting Date: April 21 , 2009
Item # 5'
Reviewed By:
Department Director:
City Manager:
Subject: Fifth Amendment to Ground Lease Agreement with Forest Lake Golf Course
Background Summary: The City entered into a Ground Lease Agreement December 3, 1991 with
Forest Lake Golf Club, LLLP which provided terms for Forest Lake to operate the golf facility over the City
of Ocoee's wastewater facility's effluent water disposal. The agreement has previously been revised four
times. This amendment to the ground lease agreement establishes a minimum daily flow of 450,000
gallons per day. Original terms of the agreement had provided for and committed the City to convey to the
golf course the maximum FDEP permitted flows. The agreement also increases the allotments of rounds of
golf from 50 to 60 per year.
Issue: Should the Mayor and City Commission approve the "Fifth Amendment To Ground Lease
Agreement" providing for a decrease in minimum days effluent flow to the golf course of 450,000 gallons
per day?
Recommendations: Motion to accept the "Fifth Amendment To the Ground Lease Agreement" and
authorize the Mayor to execute the agreement.
Attachments:
Fifth Amendment to Ground Lease Agreement
Financial Impact:
There is no direct financial impact created by the acceptance of this amendment
Type of Item: (please mark with an "x'?
_ Public Hearing
Ordinance First Reading
- Ordinance Second Reading
Resolution
Commission Approval
- Discussion & Direction
For Clerk's Deat Use:
_____ Consent Agenda
_____ Public Hearing
_____ Regular Agenda
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 ( )
N/A
N/A
N/A
1
FIFTH AMENDMENT
TO GROUND LEASE AGREEMENT
THIS FIFTH AMENDMENT TO GROUND LEASE AGREEMENT (this "Fifth
Amendment") is made and entered into as of this _ day of ,2009, by and
between the CITY OF OCOEE, a Florida municipal corporation ("Lessor"), and FOREST
LAKE GOLF CLUB, LLLP, a Florida limited liability limited partnership ("Lessee"), formerly
known as Forest Lake Golf Club, Ltd., as successor in interest to Riverbend Golf Group, Inc.
WIT N E SSE T H:
WHEREAS, Lessor and Lessee are parties to an unrecorded Ground Lease Agreement,
dated December 3, 1991, as amended by an unrecorded First Amendment dated December 17,
1992, by an unrecorded Second Amendment dated March 16, 1993, by an unrecorded Third
Amendment dated April 6, 1993, and by an unrecorded Fourth Amendment dated April IS, 2003
(collectively, the "Lease") under which Lessee operates a public golf course and effluent
transmission, disposal and re-use facility on certain real property owned by Lessor; and
WHEREAS, Lessor and Lessee desire to amend and clarify certain provisions of the
Lease; and
WHEREAS, Lessor and Lessee also wish to memorialize a modification to the lease
term prescribing the number of rounds of golf that Lessee is required to provide to Lessor;
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements set forth below, in the Lease and in the Tri-party Agreement, Lessor and Lessee
covenant and agree as follows:
1. All capitalized terms shall have the same meanings as defined in the Lease unless
otherwise defined herein.
2. Section 12.3 is amended to provide as follows (changes shown):
Lessee shall be required to process all of the treated effluent made available by
Lessor from time to time up to the minimum amount of effluent disposal capacity
specified in Article 12.1 ( c) above. maximum amount of effluent which ma'(
lawfully be disposed of at the Premises under aQplicable permits, but in no event
shall Lessee be required to dispose of more than 2.250,000 gallons ~r day of
treated effluent on the Premises. Subiect to the terms and conditions set forth in
this Lease, Lessor agrees to make available to Lessee all of its treated effluent
which Lessor is reasonably able to deliver to the Premises up to such minimum
amount at least 450,000 gallons per day / minimum daily flow of its treated
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effluent. The aforesaid minimum daily flow to the Lessee mav be reduced by
Lessor in an amount equal to any offsetting flows from the Citv of Winter Garden
which is available and provided to Lessee. Notwithstanding the foregoing, Lessee
shall not be in violation of its obligations under this Section 12.1 (c) in the event
the Effluent Disposal and Re-Use System is unable to dispose of quantities of
effluent specified in this Section 12.1 (c) as a result of adverse weather conditions
of a type which are not expected to occur more frequently than once every ten (10)
years. Except as otherwise required by the governmental agency issuing the
permit, all permits applicable to the Effluent Disposal and Re-Use System shall be
issued in the name of Lessor.
3. Section 13.2 is amended to provide as follows (changes shown):
Lessee hereby agrees to make available to Lessor during each
Operational Year of the term of the Lease fifty (50) sixty (60)
rounds ( 18 holes) of golf, together with the use of a golf cart for
each round, at no charge to Lessor. Such rounds of golf may be
used by Lessor as it shall determine at any time during such
Operational Year. In addition, if Lessor fails to use such fifty (50)
sixty (60) rounds of free golf in any Operational Year, the unused
rounds may be carried forward to any future year on a cumulative
basis.
4. Except as provided herein, the Lease shall continue in full force and effect and
each of the parties hereto hereby ratifies and confirms the terms and conditions of the Lease. All
references herein to the Lease shall refer to the Lease as amended by this Amendment unless the
text or context indicates otherwise. In the event of any conflict between the Lease and this
Amendment it is agreed that this Amendment shall control.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Fifth Amendment to
Ground Lease as ofthe day and year first above written.
Signed, sealed and delivered in the
presence of:
Lessee:
FOREST LAKE GOLF CLUB, LLLP
a Florida limited liability limited partnership
By:
LLC
FOREST LAKE GOLF CLUB,
Print Name:
a Florida limited liability company,
its General Partner
Print Name:
By:
Kenneth C. Ezell,
as Managing Member
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WITNESSES:
Signature
Printed Name
Signature
Printed Name
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA.
Approved as to form and legality this
day of , 2009
FOLEY & LARDNER LLP
By:
City Attorney
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3/31/09
Lessor:
CITY OF OCOEE, FLORIDA, a Florida
municipal corporation
By:
S. Scott Vandergrift
Mayor
Attest:
Beth Eikenberry,
City Clerk
(SEAL)
Executed on:
AUTHORIZED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD
ON , 2009 UNDER AGENDA
ITEM
3
JOINDER AND CONSENT TO AMENDMENT TO THE GROUND LEASE
The undersigned hereby certifies that it is the holder of a mortgage, lien or other encumbrance
upon the Ground Lease Agreement, dated December 3, 1991, as amended by the First
Amendment on December 17, 1992, the Second Amendment on March 16, 1993, the Third
Amendment on April 6, 1993, the Fourth Amendment on April 15, 2003, (as such instrument
may have been or will be from time to time amended, supplemented or modified), collectively,
the "Lease," and memorialized by that certain Memorandum of Lease, recorded on January 6,
1992 in Official Records Book 4361, Page 2421 and modified by that certain Amendment to
Memorandum of Lease recorded on June 9, 1993 in Official Records Book 4574, Page 1246 of
the Public Records of Orange County, which encumbrance was recorded June 9, 1993, in Official
Records Book 4574, Page 1265; as modified by Modification of Mortgage and Loan Documents,
recorded March 28, 1994, in Official Records Book 4717, Page 320, and by Second Modification
of Note and Loan Documents, recorded March 11, 1998 in Official Records Book 5479, Page
665, all of the Public Records of Orange County, Florida, and that the undersigned, for and in
consideration of valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby joins in and consents to the recording of the above referenced Amendment
to the Ground Lease, and agrees that its mortgage, lien or other encumbrance shall be
subordinated to the above agreement.
IN WITNESS WHEREOF, the undersigned have executed this instrument this _ day of
,2009.
MORTGAGEE:
Signed, sealed and delivered in
the presence of:
WACHOVIA BANK, N.A., a successor by
merger to First Union National Bank of Florida
Witness Signature
By:
Name:
Title:
Print Name
Address: 20 North Orange Avenue
Orlando, FL 32802
Witness Signature
Print Name
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STATE OF
COUNTY OF
This is to certify, that on ,2009, before me, an officer duly authorized
to take acknowledgements in the State and County aforesaid, personally appeared
as
ofW ACHOVIA BANK, N.A., successor by merger to FIRST UNION NATIONAL BANK,
who is/is not personally known to me or has/has not produced the following identification
and who did/did not take an oath, and that he/she is the person
described in and who executed the foregoing instrument and severally acknowledged the
execution thereof to be the free act and deed as such officer thereunto duly authorized.
IN WITNESS WHEREOF, I have set my hand and seal on the above date.
Notary Public
Print Name:
My commission expires:
[Affix Notary Seal]
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