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Item #07a.b.c RT Ocoee LLC center of Good LJ ",~e. .' l'~ ~ AGENDA ITEM STAFF REPORT Meeting Date: July 20, 2010 Item # 1~b. Contact Name: Contact Number: Bobby Howell, MPA 407 -905-3100, Ext. 1044 Reviewed By: Development Services Director: City Manager: Subject: RT Ocoee, LLC Rezoning Project Number RZ-09-11-08 Commission District 3 - Rusty Johnson ISSUE: Should the Honorable Mayor and City Commissioners approve a request to rezone approximately 1.93 acres of property known as RT-Ocoee, LLC from General Industrial (1-2) to Restricted Manufacturing & Warehousing (1-1)? DISCUSSION: The subject property is located on the northeast corner of Roper Parkway and Capital Court. The subject property is approximately 1.93 acres in size and is the site of an existing building that was formerly Gianni's Transport. There is an existing building that remains on the property from this use. The table below references the future land uses, zoning classifications and existing land uses of the surrounding parcels: Direction Future Land Use Zonina Classification Existina Land Use North Heavv Industrial General Industrial (1-2) Ollie Arthur Truckina East Heavy Industrial General Industrial (1-2) Citv owned oarcel - vacant South Light Industrial Restricted Cortez Welding Manufacturing & Warehousina (1-1) West Heavv Industrial General Industrial (1-2) Automotive bodv reoair uses The applicant is requesting to rezone the subject property from General Industrial (1-2) to Restricted Manufacturing & Warehousing (1-1). The rezoning is being requested to permit a wholesalelinternet vehicle sales location where customers will be invited onto the premises by appointment only with the appointments being setup through the internet. The applicant is requesting the rezoning since the 1-2 zoning designation does not permit car sales as an allowable use. A Small-Scale Site Plan detailing the above mentioned concept is currently being reviewed by staff. Since this site plan is Small-Scale, it is being reviewed by staff administratively and is not required to be presented to the City Commission per the Land Development Code. The applicant has requested several waivers from the provisions of the Land Development Code to assist in project design. The waivers will be presented to the City Commission separately. Rezoning the property to 1-1 is not anticipated to generate additional traffic impacts beyond those of the surrounding industrial uses adjacent to the subject property. The applicant has agreed to place limitations in regards to operations on the property in an effort to limit traffic impacts to the site. These use limitations include: no transport trucks on site; and, only wholesale or internet used vehicle sales. The property is located in the West Orange Industrial Park, which is the main industrial area in the City of Ocoee. The proposed use is logical in an industrial park rather than a commercial area where auto sales are a permitted use. As mentioned in the beginning of this report, the subject property is located across Roper Parkway from several automotive related uses. Rezoning the property to 1-1 to permit the proposed use is compatible to the surrounding area given that it is adjacent to several automotive related uses. There are several areas in the City where used auto sales are located in the 1-1 zoning district. The properties located immediately to the south across Capitol Court are zoned 1-1. Auto sales are a permitted use on these properties. Any of these properties could convert to an auto sales use provided they satisfy all applicable requirements of the Land Development Code. It is anticipated the proposed rezoning from General Industrial (1-2) to Restricted Manufacturing & Warehousing (1-1) will result in a less intense use than can currently be permitted on the property with the current 1-2 zoning designation. DEVELOPMENT REVIEW COMMITTEE RECOMMENDATION: The Development Review Committee (DRC) met on June 2, 2010 and reviewed the applicant's request. The applicant was notified that all concerns in regards to the review of the project had been satisfied. No additional concerns were addressed, and the DRC voted unanimously to recommend approval of the rezoning of RT-Ocoee from a designation of General Industrial (1-2) to Restricted Manufacturing & Warehousing (1-1) subject to the execution of a Development Agreement. PLANNING AND ZONING COMMISSION RECOMMENDATION: The Planning & Zoning Commission met on June 8, 2010 to consider approval of the applicant's request. After posing questions to the applicant regarding the nature of the proposed business, and considering concerns of the of adjacent business owners, the Planning & Zoning Commission voted to deny the applicant's request to rezone the property from 1-2 to 1-1 by a vote of 4-4. Since the motion died as a result of a tie, a motion to approve the rezoning request subject to the applicant supplying a sales report from the Department of Motor Vehicles on an annual basis and execution of a Development Agreement was approved by a vote of 5-3. STAFF RECOMMENDATION: Staff recommends that the Honorable Mayor and City Commissioners approve the proposed rezoning of RT- Ocoee, LLC located on the northeast corner of Roper Parkway and Capital Court from a designation of General Industrial (1-2) to Restricted Manufacturing & Warehousing (1-1) subject to the applicant supplying a sales report from the Department of Motor Vehicles on an annual basis (or an equivalent report as set forth in the Development Agreement) and execution of a Development Agreement. ATTACHMENTS: Location Map Future Land Use Map Zoning Map Overall Site Plan, RT Ocoee Small-Scale Site Plan Rezoning Ordinance Development Agreement FINANCIAL IMPACT: None. 2 .. TYPE OF ITEM: (please mark with an "x') Public Hearing Ordinance First Reading X 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 ( ) 3 N/A X N/A N/A e RT Ocoee LLC Location Map Sto c. n:s :E Q) tn :::) o-g ...J n:s ...J...J Q) Q) Q) ~ o ~ u..... o~ 1-0) ~c .- " c ~ o ~ ~ ~ UJ D: C ..J 6~t>p eo~ _~/ltIS- , I >- CD 'E ~ Q. o Oi > "'- o :ij >-E "'t: c: CII ::l Q. E '" EO o U ! o ...... o N >. ro :::E l/l 0> U .~ ~ -;;; Jg en l/lroc; >. C - "0 C 1Ji.2 :3 L l/l ro 0> ,~ C 'm 'S ._ ,g~~~cro "'5.51E'8 l::roo>o>~:3 "Oc.l/lCO 0> c.:g 0:: .- U 0 0 .E .... ~ f-:Q l/lo> >. :3 ~ -.2 Iii 0> "0 C - "" 0 -.~ u.. 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I ~~ I ~i~ ~~b ,I'1i ~ii ;..~ U" n.5' ,. -~ ." ~ -----" " -- -E_ ~ ---- ~l::r- - - - - - - ------"'""~ lil'un"F'i ll"iifi5 ______--L"~ _ _ - -y------nllin"'Q1ie"imJ.t .yo :JI/O:J 'If] I ~ ~ *h ~..:~ m !i~ ~m" ~. ~i ;I~ ~~ ~ i ~ ~ I ; ~ I ~ go 11 I" ::J ~ ! ~ ~ i~~ ~~I .'~ . ~, ! ~ig~ ~ ~ !:i~~ ! iil ~:S~!~ · \lj i~ lig II: i ~Hi ORDINANCE NO. (Rezoning Ordinance for RT-Ocoee) AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA CHANGING THE ZONING CLASSIFICATION FROM OCOEE "1-2" ZONING, HEAVY INDUSTRIAL DISTRICT TO OCOEE "I-I" ZONING, LIGHT MANUFACTURING AND WAREHOUSING DISTRICT, FOR CERTAIN REAL PROPERTY COMPRISING APPROXIMA TEL Y 1.93 ACRES LOCATED NORTH OF AND ADJACENT TO CAPITOL COURT AND EAST OF AND ADJACENT TO L.F. ROPER PARKWAY, PURSUANT TO THE APPLICATION SUBMITTED BY THE PROPERTY OWNER; FINDING SUCH ZONING TO BE CONSISTENT WITH THE OCOEE COMPREHENSIVE PLAN AND THE OCOEE CITY CODE AS OF THE ADOPTION DATE OF THIS ORDINANCE; PROVIDING FOR AND AUTHORIZING THE REVISION OF THE OFFICIAL CITY ZONING MAP; REPEALING INCONSISTENT ORDINANCES; PROVIDING AN ADOPTION DATE AND AN EFFECTIVE DATE. WHEREAS, the owner (the "Owner") of certain real property located within the corporate limits of the City of Ocoee, Florida, as hereinafter described, has submitted an application to the City Commission of the City of Ocoee, Florida (the "Ocoee City Commission") to rezone said real property to Ocoee "1-1," Light Manufacturing and Warehousing District (the "Zoning"); WHEREAS, pursuant to Section 5-9(B) of Article V of Chapter 180 of the Code of Ordinances of the City of Ocoee (the "Ocoee City Code"), the Planning Director has reviewed said application and determined that the Zoning requested by the Owner is consistent with the 1991 City of Ocoee Comprehensive Plan as set forth in Ordinance No. 91-28, adopted September 18, 1991, as amended (the "Ocoee Comprehensive Plan"); WHEREAS, the Zoning was scheduled for study and recommendation by the Planning and Zoning Commission of the City ofOcoee ("PZC"); ORLA_1585515.1 WHEREAS, the PZC has held a public hearing with public notice thereof and reviewed the Zoning for consistency with the Ocoee Comprehensive Plan and determined that the Zoning is consistent with the Ocoee Comprehensive Plan and is in the best interest of the City and has recommended to the Ocoee City Commission that it approve the Zoning and find it consistent with the Ocoee Comprehensive Plan; WHEREAS, the Ocoee City Commission has held a de novo public hearing with public notice thereof with respect to the Zoning; and WHEREAS, this Ordinance has been considered by the Ocoee City Commission in accordance with the procedures set forth in Section 166.041 (3), Florida Statutes. NOW, THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: SECTION 1. Authority. The City Commission of the City of Ocoee has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida and Chapter 166, Florida Statutes. SECTION 2. Rezoning. The zoning classification, as defined in the Ocoee City Code, of the following described parcel of land containing approximately 1.93 acres located within the corporate limits of the City of Ocoee, Florida, is hereby changed from Ocoee "1-2" Zoning, Heavy Industrial District to "1-1" Zoning Light Manufacturing and Warehousing District with such change becoming effective upon the effective date of this Ordinance as provided in Section 9 below: See Exhibit "A" attached hereto and by this reference made a part hereof (the "Property"). ORLA_1585515.1 -2- SECTION 3. Map. A map of the Property which clearly shows the area of Zoning is attached hereto as Exhibit "B" and by this reference is made a part hereof. SECTION 5. Official Zonin~ Map. At such time as this Ordinance becomes effective as provided in Section 9 below, the City Clerk is authorized and directed to revise the Official Zoning Map of the City of Ocoee in order to incorporate the Zoning enacted by this Ordinance and the Mayor and City Clerk are authorized to execute said revised Official Zoning Map in accordance with the provisions of Section 5-1 (0) of Article V of Chapter 180 of the Ocoee City Code. SECTION 6. Ocoee Comprehensive Plan. The Ocoee City Commission hereby finds that this Ordinance is consistent with the Ocoee Comprehensive Plan. SECTION 7. Inconsistent Ordinances. All ordinances or parts of ordinances in conflict or inconsistent herewith are repealed and rescinded as of the effective date of this Ordinance. SECTION 8. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance 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 hereto. SECTION 9. Effective Date. This Ordinance shall become effective ten (10) days after its passage and adoption. ORLA_1585515.1 -3- ATTEST: PASSED this _ day of ,2010. ADOPTED this _ day of ,2010.. Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA APPROVED AS TO FORM AND LEGALITY this day of ,2010. FOLEY & LARDNER LLP By: City Attorney ORLA_1585515.1 CITY OF OCOEE, FLORIDA S. Scott Vandergrift, Mayor ADVERTISED ,2010 READ FIRST TIME ,2010 READ SECOND TIME AND PASSED , 2010 UNDER AGENDA ITEM NO. -4- ORLA_1585515.1 EXHIBIT "A" LOT H, WEST ORANGE INDUSTRIAL PARK UNIT TWO PLAT BOOK 5, PAGES 84-85, ORANGE COUNTY, FLORIDA -5- EXHIBIT "B" RT Ocoee LLC Location Map Sto e ORLA_1585515.1 -6- THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Dorothy E. Watson, Esq. FOLEY & LARDNER LLP III North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 For Recording Purposes Only RETURN TO: Beth Eikenberry, City Clerk CITY OF OCOEE 150 N, Lakeshore Drive Ocoee, FL 34761 (407) 656-2322 DEVELOPMENT AGREEMENT (RT-Ocoee) THIS DEVELOPMENT AGREEMENT ("this Agreement") is made and entered into as of the _ day of ,2010 by and between RT-OCOEE, LLC whose mailing address is 6239 Edgewater Drive, Building N-4, Suite 4, Orlando, Florida 32810 (hereinafter referred to 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"). W ! T N E ~ ~ E T H: WHEREAS, the 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, the City has approved that certain Small-Scale Site Plan for RT -Ocoee, LLC as prepared by American Civil Engineering Co. and being dated stamped as received by the City on , (the "Final Plan") pursuant to Section 4-3 of the Land Development Code of the City ofOcoee, subject to the execution of this Agreement; and WHEREAS, pursuant to the petition of the Owner, on the City Commission approved certain waivers from the Land Development Code in connection with the Final Plan; WHEREAS, the City and the Owner desire to place the conditions of approval for the Final Plan and waivers granted in connection with the Pinal Plan in the public records; ORLA_1534850,5 WHEREAS, a certain drainage easement for the benefit of the public is located along the northern boundary of the Property as depicted on the Plat of West Orange Industrial Park, Unit Two according to the plat thereof as recorded in Plat Book 5, Page 84, Public Records of Orange County, Florida (the "Drainage Easement"); and WHEREAS, the Owner has requested the City's permission to construct a fence and certain improvements that will encroach over and upon portions of the Drainage Easement, as depicted on the Final Plan (the "Encroachments"); and WHEREAS, subject to the terms, conditions and limitations set forth herein, the City has agreed to allow the Encroachments to be constructed as depicted in the Final Plan; and WHEREAS, the Owner and the City desire to execute this Agreement in order to evidence their'mutual agreement as to certain matters related to the development of the Property and as a condition to the approval of the Final Plan by the City. 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 con-ect and incorporated herein by this reference. All capitalized terms not otherwise defined herein shall be as defined or described on the Final Plan, unless otherwise indicated. Section 2. Development of the Property. (A) The Owner hereby agrees to develop the Property in accordance with the Final Plan, and all permits and approvals issued by the City and other governmental entities with respect to the Property. As of the date hereof, the Final Plan has been approved by the City and is hereby incorporated herein by reference as if fully set forth herein. (B) The Owner hereby agrees that the Property shall be developed in accordance with and is made subject to those certain Conditions of Approval attached hereto as Exhibit "B" and by this reference made a part hereof (the "Conditions of Approval"). The Owner further agrees to comply with all of the terms and provisions of the Conditions of Approval. The Conditions of Approval attached hereto as Exhibit "B" are the same as the Conditions of Approval set forth on the Final Plan. (C) Except as otherwise expressly set forth in this Agreement and the Final Plan, it is agreed that the Final Plan shall conform to the Ocoee Land Development Code requirements presently in effect. In the event of any conflict between the provisions of the Ocoee Land Development Code, as it may from time to time be amended, and this Agreement, it is agreed that the provisions of this Agreement shall control. Section 3. Waivers from the Ocoee Land Development Code. As part of the approval of the Final Plan, the Owner has been granted waivers from the requirements of the ORLA_1534850.5 -2- Ocoee Land Development Code, said waivers being set forth in Exhibit "C" attached hereto and by this reference made a part hereof (the "Waivers"). Section 4. Use of the Property. Only wholesale and limited retail motor vehicle sales, as further described below, shall be allowed on the Property. No more than 1 0 percent (10%) of total motor vehicle sales on the Property may be internet-originated retail motor vehicle sales. No more than five percent (5%) of total motor vehicle sales on the Property may be walk- in or drive-in retail motor vehicle sales. No other retail sales or uses shall be permitted on the Property. The Property shall not be used for mechanical repairs, automotive detailing, or automotive service. Section 5. Reportine: of Vehicle Sales. On March 1 of each year, Owner shall provide to the City a report from the Florida Department of Motor Vehicles (or an equivalent, third-party report) indicating the percentage of total prior calendar-year revenue from motor vehicles sales at the Property (including by tenants of Owner) generated by retail sales (the "Third Party Report"). If such a report is not commercially available, then, on March 1 of each year, Owner shall provide to the City a self-generated report indicating the percent of total prior calendar-year revenue from motor vehicles sales at the Property (including by tenants of Owner) generated by retail sales (the "Self-Generated Report"). Said Self-Generated Report shall be accompanied by a certification by Owner as to the accuracy of such report. In addition to the Third Party Report or the Self-Generated Report, as the case may be, on March 1 of each year, Owner shall provide to the City a self-generated report indicating (i) the percentage of total prior calendar-year revenue from motor vehicles sales at the Property (including by tenants of Owner) generated by internet-originated retail sales and (ii) the percentage of total prior calendar-year revenue from motor vehicles sales at the Property (including by tenants of Owner) generated by walk-in or drive-in retail sales (the "Supplemental Report"). The Supplemental Report shall also be accompanied by a certification by Owner as to the accuracy of such report. Upon request, Owner shall also supply to City a report of total gross revenue from all motor vehicles sold at the Property (including by tenants of Owner) along with a certification by Owner as to the accuracy of such report Section 6. Enforcement. (A) Retail Sales. For any calendar year in which more gross revenue from internet originated retail sales and/or walk-in or drive-in retail sales are generated from sales on the Property than permissible under this Agreement, Owner hereby agrees to pay a penalty to the City as follows: Excess retail sales Penalty 1-5% greater than allowable under the 3 percent of total gross revenue from all sales Agreement of motor vehicles from the Property 6-10% greater than allowable under the 6 percent of total gross revenue from all sales Agreement of motor vehicles from the Property ORLA_1534850,5 -3- 11-15% greater than allowable under the 10 percent of total gross revenue from all sales Agreement of motor vehicles from the Property. 16-20% greater than allowable under the 15 percent of total gross revenue from all sales Agreement of motor vehicles from the Property 21-25% greater than allowable under the 20 percent of total gross revenue from all sales Agreement of motor vehicles from the Property More than 26% more than allowable under the 30 percent of total gross revenue from all sales Agreement of motor vehicles from the Property (B) Transport Truck. For each incident in which (i) a transport truck has entered the Property for the delivery or pickup of motor vehicles, (ii) a person doing business on the Property has accepted delivery of motor vehicles by transport truck or has shipped motor vehicles from the Property by transport truck or (iii) a transport truck delivering motor vehicles to or picking up motor vehicles from the Propeliy has parked or waited on L.F. Roper Parkway or Capitol Court, the Owner heereby agrees to pay a penalty to the City as follows: Number of Prior Incidents Penalty 0-5 prior incidents $500 per incident 6-10 prior incidents $1000 per incident 11-15 prior incidents $1500 per incident 16-20 prior incidents $2000 per incident Greater than 20 prior incidents $3000 per incident. (C) The Owner agrees that the penalties set forth above are fair and reasonable penalties to be incurred by the Owner for violation of the referenced provisions of this Agreement. (D) The penalties set forth above shall be imposed by written notice from the City Manager or his authorized designee to the Owner setting for the specific breach and penalty due in connection therewith. Any such penalty shall be due and payable within thirty (30) days from the date of such notice and shall thereafter bear interest at the rate of 18% per annum until paid. (E) The above provisions are supplemental to other enforcement remedies which may be available to the City under this Agreement and are not intended to imply that the Owner or the Owner's tenants may violate any provision of this Agreement by the payment of a financial penalty to the City. ORLA_1534850.5 -4- Section 7. Easement Encroachment. (A) Consent to Encroachment. Subject to the terms, conditions and limitations set forth herein, the City hereby consents to the construction of the Encroachments and grants to the Owner a non-exclusive license to occupy and utilize the Encroachments to be placed within the Drainage Easement (the "License"). The foregoing is a non-exclusive grant and does not in any way diminish the right of the City to utilize the Drainage Easement for any purposes not inconsistent with the foregoing grant, including the rights to access, inspect, maintain, operate, construct and/or reconstruct any existing or future drainage improvements located within the Easement Area. (B) Owner's Use. Owner covenants that they shall make no other use of the Drainage Easement without the City's written consent, which may be granted or withheld in the City's sole discretion, whether reasonable or not. Unless otherwise agreed in writing by the parties hereto, Owner specifically acknowledges and agrees that they shall not expand, extend or otherwise increase the Encroachments in any way from their location as depicted on the Final Plan. Any future modification to the portion of the Final Plan relating to the Drainage Easement shall be reviewed by the City in its capacity both as a governmental agency and as the holder of an easement affected by the requested modification. In its capacity an easement holder, the parties hereto agree that the City may, in its sole and absolute discretion, accept or reject any such proposed modification. (C) Removal of Encroachments. In the event the City, including its agents or assigns, requires to access, inspect, maintain, operate, construct and/or reconstruct any existing or future drainage improvements located within the Drainage Easement, then the City may remove any or all of the Encroachments from the Easement Area without compensation or reimbursement to Owner. The City has no obligation to reconstruct or replace any of the Encroachments removed in accordance with this provision. (D) Reimbursement of Expenses. Within thirty (30) days of receipt of an invoice from the City, the Owner shall reimburse the City for any and all costs and expenses incurred in connection with the exercise of the City's rights pursuant to Section 4 (C) above. Such costs and expenses that remain unreimbursed after thirty (30) days shall become a continuing lien upon the real property. If such obligation to the City remains unpaid for a period of sixty (60) days from the date the City incurred such costs and expenses, then the City may take any action deemed necessary in order to collect the moneys owed to the City, including but not limited to retaining the services of a collection agency or attorney, initiating legal proceedings for the collection thereof, recording a notice of lien and/or foreclosing the same in the same fashion as mortgage liens are foreclosed. Liens established in accordance with this section shall be coequal with all state, county and municipal taxes and shall be superior in dignity to all other liens, titles and claims until paid. (E) Indemnity. The Owner agrees to indemnify, defend and hold harmless the City, and their respective officials, agents, employees and assigns from and against any and all claims, actions, suits, proceedings, causes of action, losses, damages, injuries, liabilities, costs, charges or expenses, including without limitation reasonable attorneys' and paralegals' fees and ORLA_1534850.5 -5- __m____ _I costs (whether incurred before, during or after trial, or any appellate level), arising from or in any way related to the Agreement or the Owner's placement of the Encroachments within the Drainage Easement. (F) Revocation of License. If Owner is in violation of any terms or conditions set forth in this Agreement, the City, at its option, may revoke the License upon thirty (30) days' written notice to Owner ("Termination"). In the event of Termination, Owner shall immediately remove the Encroachments and return the Drainage Easement to as good condition and repair as the same existed immediately prior to the erection of the Encroachments. If Owner fails to remove the Encroachments, then the City may, at its option, remove same at the expense of Owner and without liability for damage to Owner. Further, upon voluntary removal and/or destruction of the Encroachments by Owner, the License shall automatically terminate as to any of the Encroachments which are voluntarily removed and/or destroyed. Section 8. 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 (1) hand delivered to the other party at the address appearing on the first page of this Agreement, or (ii) when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address appearing 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 9. Covenant Runninl!: 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 10. Recordation of Ae:reement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at the Owner's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Owner, execute and deliver letters affirming the status of this Agreement. Section 11. 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 12. Time of the Essence. Time is hereby declared of the essence to the lawful performance of the duties and obligations contained in this Agreement. Section 13. Ae:reement: Amendment. This Agreement, along with the Final Plan, 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 14. 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 ORLA_1534850.5 -6- documents and instruments, in form and substance reasonably necessary to confirm and/or effectuate the obligations of either party hereunder. Section 15. Specific Performance. In addition to any other remedy described herein, both the City and the Owner shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. The City may bring an action at law or in equity to collect from the Owner any penalties due and payable under the provisions of Section 6 hereof. Section 16. Attornevs' 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. Section 17. 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 18. 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 19. 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 20. Effective Date. This Agreement shall first be executed by the Owner and the Association and submitted to the City for approval by the Ocoee City Commission. Upon approval by the Ocoee City Commission, this Agreement shall be executed by the City. The Effective Date of this Agreement shall be the date of execution by the City. Section 21. Term. The term of this Agreement shall commence on the Effective Date and run until terminated pursuant to the terms hereto. ORLA_1534850.5 -7- 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 in the presence of: OWNER: R T -Ocoee, LLC, a Florida limited liability company By: Print Name Ray M. Tatum, Managing Member 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 Ray M, Tatum as the Managing Member of RT-Ocoee, LLC, a Florida limited liability company, 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 ,2010. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (ifnot legible on seal): My Commission Expires (if not legible 011 seal): ORLA_1534850.5 -8- CITY: Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA By: Print Name: S. Scott Vandergrift, Mayor Attest: Beth Eikenberry, City Clerk Print Name: (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of ,2010. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2010 UNDER AGENDA ITEM NO. FOLEY & LARDNER LLP By: City Attorney ORLA_1534850.5 -9- 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 S. SCOTT V ANDERGRIFT and BETH EIKENBERRY, 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 ,2010. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible 011 seal): ORLA_1534850.5 -10- JOINDER AND CONSENT TO DEVELOPMENT AGREEMENT ( ) The undersigned hereby certifies that it is the holder of an indenture of mortgage, dated the _ day of , _ and recorded in Official Records Book _, Page _, Public Records of Orange County, Florida, upon the above described property and the undersigned for and in consideration of valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby join in and consent to the execution of the foregoing Development Agreement ( ) and agrees that the lien of its mortgage described herein above shall be subordinated to the aforedescribed Development Agreement. Signed, sealed and delivered in the presence of: (Print name of Mortgage holder) By: Printed Name: Title: Print Name: Print Name: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this , 2010, by (Name of Officer) (Title) of (Name) LJ is personally known to me, or [~ has produced identification. day of who is the He/she as Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seal): My Commission Expires (if not legible 011 seal): ORLA_1534850.5 -11- ORLA_1534850.5 EXHIBIT "A" LOT H. WEST ORANGE INDUSTRIAL PARK UNIT TWO PLAT BOOK 5. PAGES 84-85. ORANGE COUNTY. FLORIDA -12- EXHIBIT "B" CONDITIONS OF ApPROVAL I, THE DEVELOPMENT OF THE PROPERTY SHALL BE CONSISTENT WITH THE REQUIREMENTS OF THE CITY OF OCOEE CODE. 2. NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE ANY PROVISION OF THE CITY OF OCOEE LAND DEVELOPMENT CODE UNLESS EXPRESSLY SET FORTH ON A WAIVER TABLE SHOWN HEREON. 3, ANY DAMAGE CAUSED TO L.F. ROPER PARKWAY AND CAPITOL CT. AS A RESULT OF THE CONSTRUCTION ACTIVITIES RELATED TO THE DEVELOPMENT OF THE PROPERTY SHALL BE PROMPTLY REPAIRED BY THE OWNER TO THE APPLICABLE GOVERNMENTAL STANDARDS AT THE OWNER'S SOLE COST AND EXPENSE. 4, THE PROPERTY WILL CONNECT WITH POTABLE WATER SERVICE IN ACCORDANCE WITH OCOEE STANDARDS, 5. THE CITY OF OCOEE IS SUBJECT TO THE TERMS, PROVISIONS AND RESTRICTIONS OF FLORIDA STATUTES CHAPTER 163 CONCERNING MORATORIA ON THE ISSUANCE OF BUILDING PERMITS UNDER CERTAIN CIRCUMSTANCES. THE CITY HAS NO LAWFUL AUTHORITY TO EXEMPT ANY PRIVATE ENTITY, OR ITSELF, FROM THE APPLICATION OF SUCH STATE LEGISLATION AND NOTHING HEREIN SHOULD BE CONSTRUED AS SUCH AN EXEMPTION. 6. ALL ON-SITE UTILITIES INCLUDING ELECTRICAL, CABLE TV AND TELEPHONE SHALL BE PLACED UNDERGROUND. 7. ALL EXISTING STRUCTURES (EXCLUDING BUILDINGS, BUT INCLUDING POWER LINES, EXISTING AERIAL AND UTILITY FACILITIES) AND RELATED EASEMENTS WILL BE REMOVED AND/OR TERMINATED PRIOR TO OR DURING CONSTRUCTION OF THE DEVELOPMENT REPLACING THOSE USES. 8, INTENTIONALLY DELETED. 9. THE LOT OWNER WILL BE RESPONSIBLE FOR OPERATION AND MAINTENANCE. 10. EXISTING TREES 8" DBH OR LARGER (OTHER THAN CITRUS TREES OR "TRASH" TREES) LOCATED ALONG PROPOSED LOCATIONS OF BUFFER WALLS OR ROAD RIGHT-OF-WAY LINES WILL BE PRESERVED IF AT ALL POSSIBLE. THE BUFFER WALLS AND ROADS WILL BE DESIGNED AROUND THOSE TREES TO INCORPORATE THEM INTO REQUIRED LANDSCAPE BUFFERS AND AS STREET TREES. II, ALL UTILITIES TO BE PLACED WITHIN THE 10' EASEMENT ALONG THE FRONT OF THE LOT WILL BE PLACED AROUND EXISTING PROTECTED TREES TO BE PRESERVED. 12. IN ORDER TO ENSURE THAT AS MANY EXISTING TREES AS POSSIBLE WILL BE PRESERVED, ALL ROAD RIGHTS-OF-WAY AND RETENTION AREAS WILL BE FLAGGED FOR REVIEW BY THE CITY AND THE ENGINEER PRIOR TO ANY TREE REMOVAL. NO CLEARING PERMITS WILL BE ISSUED FOR SITE WORK OR BUILDING CONSTRUCTION UNTIL ALL TREES TO BE PRESERVED HAVE BEEN CLEARLY MARKED WITH TREE PROTECTION BARRIERS. 13. REMOVAL OF EXISTING TREES WILL BE PER THE LIMITS AS SHOWN ON THE STORM WATER POLLUTION PREVENTION PLAN. 14. THE DEVELOPER SHALL CONSTRUCT APPROPRIATE CURB CUTS TO ENABLE ACCESS RAMPS AT ALL RIGHTS-OF-WAY INTERSECTIONS (AND OTHER AREAS AS REASONABLY REQUIRED) IN ORDER TO ACCOMMODATE ACCESS TO SIDEWALKS AND STREETS FOR PERSONS WHO ARE IN WHEELCHAIRS AND OTHER PERSONS WHO ARE PHYSICALLY CHALLENGED, AND OTHERWISE COMPLY WITH ALL AMERICANS WITH DISABILITIES ACT ("ADA")REQUIREMENTS, WHEN SIDEWALKS ARE CONSTRUCTED ON CORNER LOTS AT CERTAIN LOCATIONS, THE SIDEWALKS WILL BE EXTENDED TO THECURB AND THE APPROPRIA TE RAMPS WILL THEN BE CONSTRUCTED. THE PROPERTY OWNERS ASSOCIATION WILL BE RESPONSIBLE FOR THE CONTINUED MAINTENANCE OF ALL ORLA_1534850.5 -13- STREETS AND SIDEWALKS IN ACCORDANCE WILL ALL ADA REQUIREMENTS THA T MA Y NOW OR HEREINAFTER BE APPLICABLE TO THE PROJECT. 15. INTENTIONALLY DELETED. 16, INTENTIONALLY DELETED. 17. THERE SHALL BE NO ACCESS FROM THE PROJECT TO ANY PUBLIC ROADS EXCEPT AT THE APPROVED LOCATIONS SHOWN ON THE PLAN. 18. THE FOLLOWING IS THE BUSINESS PLAN STATEMENT FOR THE RT-OCOEE, LLC SITE LOCATED AT 500 L.F. ROPER PARKWAY: PURPOSE: CONSTRUCT NEW BUILDINGS AND RENOVATE EXISTING BUILDING FOR RENTAL ELEVEN (II) OFFICE/STORAGE UNITS FOR LEASING TO WHOLESALE/INTERNET USED VEHICLE DEALERS DULY LICENSED BY THE DEPARTMENT OF MOTOR VEHICLES, USE: UNITS WILL HOUSE OFFICE SPACE WITH INDOOR AND OUTSIDE VEHICLE DISPLAY AREAS. NO RETAIL CAR CLEANING. ANTICIPATED SALES WILL BE 90+ PERCENT WHOLESALE AND 10 PERCENT INTERNET. ACCESS: THIS IS PRIMARILY A WHOLESALE FACILITY. ACCESS WILL BE "BY APPOINTMENT ONLY." ALL DEALER LICENSE VISITORS WILL BE "BY APPOINTMENT ONLY." RETAIL SALES EFFORTS WILL BE INTERNET-BASED. "DRIVE IN" TRAFFIC WOULD BE VERY LIMITED. PUBLIC ACCESS IS EXPECTED TO BE LESS THAN FIVE PERCENT OF THE TOTAL. STAFFING: EACH UNIT WILL HAVE A MIX OF ONE EMPLOYEE; MAXIMUM OF TWO EMPLOYEES, "MECHANICAL REPAIRS" OR "COMPLETE DETAILING" WILL NOT BE PERMITTED. STORAGE, DISPLAY AND CLERICAL FUNCTIONS ONLY WILL TAKE PLACE. 19, THERE WILL BE NO LARGE TRANSPORT TRUCKS USED TO DELIVER TO/FROM THE SITE. CARS WILL BE BROUGHT INDIVIDUALLY TO THE SITE, 20. RECLAIMED WATER WILL BE USED FOR IRRIGATION PURPOSES, IF A V AILABLE. 21. A PERPETUAL NON-EXCLUSIVE ACCESS EASEMENT OVER ALL INTERNAL ROADWAYS AND OTHER PAVED AREAS IS HEREBY GRANTED IN FAVOR OF THE CITY OF OCOEE AND OTHER APPLICABLE AUTHORITIES FOR LAW ENFORCEMENT, FIRE AND OTHER EMERGENCY SERVICES. THE CITY MAY REQUIRE THAT THE OWNER EXECUTE AND EASEMENT IN RECORDABLE FORM WITH RESPECT TO THE FOREGOING. 22. ALL LEGAL INSTRUMENTS INCLUDING BUT NOT LIMITED TO THE DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS, ASSOCIATION DOCUMENTS, CONDOMINIUM DOCUMENTS AND DEEDS CONVEYING PROPERTY TO A HOMEOWNERS ASSOCIATION OR PROPERTY OWNERS ASSOCIATION SHALL BE APPROVED BY THE CITY PRIOR TO PLAN APPROVAL AND SHALL COMPLY WITH ALL ORDINANCES OF THE CITY IN EFFECT AT THE TIME OF RECORDING ANY SUCH INSTRUMENT. 23. THE FOLLOWING CONDITIONS OF APPROVAL APPLY TO OPERATIONS ON THE PROPERTY: 23.1. ONLY WHOLESALE AND LIMITED RETAIL SALES, AS FURTHER DESCRIBED BELOW, SHALL BE ALLOWED ON THE PROPERTY. 23.2. NO MORE THAN TEN PERCENT (10%) OF TOTAL SALES MAY BE INTERNET ORIGINATED RETAIL SALES. NO MORE THAN FIVE PERCENT (5%) OF TOTAL SALES MAY BE WALK-IN OR DRIVE-IN RETAIL SALES. NO OTHER RETAIL MOTOR VEHICLE SALES SHALL BE PERMITTED ON THE PROPERTY. 23.3. EACH UNIT MAYBE OCCUPIED BY A MAXIMUM OF TWO EMPLOYEES. 23.4. MECHANICAL REPAIRS OR COMPLETE DETAILING SHALL NOT BE ALLOWED ON THE PROPERTY. TO THE EXTENT THAT THERE IS MORE THAN ONE MERCHANT OPERATING ON THE PROPERTY, THE ABOVE PROVISIONS SHALL BE APPLICABLE TO EACH SUCH ORLA_1534850,5 -14- MERCHANT AND ANY AGREEMENTS WITH INDIVIDUAL MERCHANTS OR TENANTS WILL INCLUDE THE ABOVE PROVISIONS. 24, THERE WILL BE NO AUTO SERVICE AREAS, 25. THERE WILL BE NO COMMERCIAL OUTDOOR DISPLAY AREAS, SALE AREAS/TENTS, PLAY AREAS, COMMERCIAL PLAY DEVICES & VISIBLE CHAIN LINK ENCLOSURES. 26. THERE WILL BE NO COMMERCIAL ACCESSORY BUILDING. 27. THERE WILL BE NO TENTS, FREE STANDING LIGHT STRUCTURES, OR KIOSKS USED FOR COMMERCIAL PURPOSES. 28. NO TRANSPORT TRUCKS SHALL BE ALLOWED ON THE PROPERTY FOR DELIVERY OR PICKUP OF MOTOR VEHICLES. 29. NO ONE DOING BUSINESS ON THE PROPERTY WILL ACCEPT DELIVERY OF MOTOR VEHICLES BY TRANSPORT TRUCK OR SHIP MOTOR VEHICLES FROM THE PROPERTY BY TRANSPORT TRUCK. 30. NO TRANSPORT TRUCKS DELIVERING MOTOR VEHICLES TO OR PICKING UP MOTOR VEHICLES FROM THE PROPERTY SHALL BE ALLOWED TO PARK OR WAIT ON L.F, ROPER PARKWAY OR CAPITOL COURT. ORLA_1534850.5 -15- EXHIBIT "e" CODE CURREN[ SECTION STANDARD NEW STANDARD JUSTIFICATION To accomroodate the constraints of the small site and Rows ofparking cannot exceed 90 To allow rows of parking to the size of the buildings, Approving this \\aiver \\ill 6.14(1)(f)(13) allow this project to be economically feasible. 'nle feet in length. exceed 90 feet in length. project \\iII then be able to create additional employment oppurttmities and generate additional tax revenue. Linear landscape islands at least Allow the parking rows to exceed To accommodate the constraints of the small site tUld 180 SF if on a single row of 90 feet in length and not have to the size of the buildings, Approving this \\aiver will 6.14( I )(f)( 14) parking, or 360 SF if on a double provide the landscape islands that allow this project to be economically feasible. The row are required to break up are required to break up the project will then be able to create additional parking spaces, parking spaces employment oppurttmitit.'S and genemte additional tax revenue, To accommodate the constrnints of the small site and A minimwn of a 25 foot wide To allow the landscape buffer the size of the buildings. Approving this \\aivcr \\ill 6.14(2)(b)(1) landscape buffer must be provided along L.F, Roper to be 15 feet allow this project to be economically feasible. The along secondary streets. wide. project will then be able to create additional emplo)ment oppurttmitics and genemte additional tax revenue, ORLA_1534850.5 -16- Copy of Public Hearing Advertisement Date Published THURSDAY, JULY 8, 2010 El He Advertisement The complete case file Including 0 complete legal description bY metes and bounds, may be Inspected at the' Ocoee Development Services Depart- ment/Planning Dlv;slon located at 150 North Lokeshore Drive, Ocoee, Fiori. do between the hours of 8:00 a.m, and 5:00 p,m:, Monday through Friday, ex- cept legal holidays. " The OcoeeCltY Commission may con. tlnue the public' hearings to other dates and times, as It deems neces- sary. Any interested. party shall be ado. vised of the dates, times, and places of g~blfgn~~a"~~~~ ~fh~~r~eo~~~g~I~~ during the hearing and no further no- tices regarding these matters will be. ~~~b~h:;''iio ~~Ir~~eto"~~:;.,~~~~td~r. sian made .at. the pUblic hearings will need' a record of the proceedings and far this purpose may need to ensure that a verbatim record of the proceed- Ings is made which Includes. the testi- mony and evidence upon which the ap- peal is based. Persons with disabilities needing assistance to participate in ?~lt ?~et~Yf: t'\~~~~dJ~~~es.raO~~ur~ar~ advance of the meeting at 407-905-3105. Beth Eikenberry, City Clerk COR1076338 71812010- AGENDA ITEM STAFF REPORT Meeting Date: July 20, 2010 Item # 7 c. Contact Name: Contact Number: Bobby Howell, MPA 407 -905-3100, Ext. 1044 Reviewed By: Development Services Director: City Manager: Subject: RT Ocoee, LLC Waiver Requests to Small-Scale Site Plan Commission District 3 - Rusty Johnson ISSUE: Should the Honorable Mayor and City Commissioners approve three waiver requests for the Small-Scale Site Plan for RT Ocoee, LLC? DISCUSSION: The subject property is located on the northeast corner of Roper Parkway and Capital Court. The subject property is approximately 1.93 acres in size and is the site of an existing building that was formerly Gianni's Transport. There is an existing building that remains on the property from this use. The table below references the future land uses, zoning classifications and existing land uses of the surrounding parcels: Direction Future Land Use Zonina Classification Existina Land Use North Heavy Industrial General Industrial (1-2) Ollie Arthur Truckino East HeavY Industrial General Industrial (1-2) City owned Darcel - vacant South Light Industrial Restricted Cortez Welding Manufacturing & Warehousino. (1-1) West Heavy Industrial General Industrial (1-2) Automotive body reoair uses The applicant has submitted a Small-Scale Site Plan in order to permit a wholesale/internet vehicle sales location, Since this site plan is Small-Scale, it is being reviewed by staff administratively and is not required to be presented to the City Commission for final approval. The applicant has requested three waivers from the provisions of the Land Development Code to assist in project design. These waivers can only be approved by the City Commission. The applicant has justified all waiver requests by stating the waivers are necessary to accommodate the constraints of the small site and the size of the buildings. Approving this waiver will allow this project to be economically feasible, The project will then be able to create additional employment opportunities and generate additional tax revenue. The City Commission has sole discretion to approve waivers from Code requirements based upon four criteria: 1, If the project is part of an integrated and master planned development; 2. If the project is compatible with surrounding developments; 3. If the project imposes no impacts on City infrastructure greater than that generated by other uses normally permitted in the underlying zoning districts; and lor, 4, If the project provides an offsetting public benefit which is technically sound and measurable. The first waiver request is to Section 6,14(1 )(f)(13) of the Land Development Code. This section of the Land Development Code requires rows of parking not to exceed 90-feet in length. The applicant is requesting this waiver to allow rows of parking to exceed 90-feet in length on the site. The second waiver request is to Section 6.14(1)(f)(14) of the Land Development Code. This section of the Land Development Code requires linear landscape islands measuring at least 180 square feet if at the end of a single row of parking or 360 square feet in area if at the end of a double row of parking in order to break up parking spaces. The applicant is requesting this waiver to allow no linear landscape islands at the ends of parking rows. The third waiver request is to Section 6. 14(2)(b)(1 ) of the Land Development Code, This section of the Land Development Code requires a minimum of a 25-foot wide landscape buffer along secondary streets. The project fronts Roper Parkway which is considered a secondary street per the Land Development Code. The applicant is requesting this waiver to allow a 15-foot wide landscape buffer along Roper Parkway. Staff has determined the project will be compatible with surrounding developments in the area if the waivers are granted. The majority of the surrounding development in the West Orange Industrial Park was constructed prior to the implementation of this version of the Land Development Code and did not have to meet the same standards. STAFF RECOMMENDATION: Staff recommends that the Honorable Mayor and City Commissioners approve all three waiver requests. ATTACHMENTS: Location Map Future Land Use Map Zoning Map Overall Site Plan, RT Ocoee Small-Scale Site Plan FINANCIAL IMPACT: None. 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