Item #08 Approval of Intent to Annex for Water Service for Ngoc Do at 430 Whittier Avenue ocoee
Florida
AGENDA ITEM COVER SHEET
Meeting Date: December 1, 2015
Item # 8'
Reviewed By:
Contact Name: David A. Wheeler, P.E. Department Director: f
Contact Number: (407) 905-3100, ext. 1504 City Manager:
Subject: Intent to Annex for Water Service for Ngoc Do at 430 Whittier Avenue (District 2 —
Commissioner Rosemary Wilsen)
Background Summary:
Mr. Do lives on the property which is located at 430 Whittier Avenue and has approached the City for utility
service. The property was platted as a part of the Hillcrest Heights subdivision and has one single family
residence on the property. The property is currently within unincorporated Orange County and is not contiguous
to the City Limits. However the property is inside the City's JPA boundary, Water & Sewer Territorial
Boundary, and City Limits. Sanitary sewer service from the City is not available at this time; therefore, this is
just an Intent to Annex for water service.
There is a 4" water main along the west side of Whittier Avenue that could be tapped for the water service to the
property. There are no sewer facilities in the area to even consider sanitary sewer service. There is available
capacity in the potable water system for this additional residence.
The City's requirement about annexation/intent to annex to be able to provide service and the differences
between resident service and non-resident service were discussed with Mr. Do. The City's fee requirements for
an Intent to Annex application approval were provided to Mr. Do. Upon annexation, the utility rates would
reduce to city resident charges. Also, should the property become contiguous to the City Limits and Mr. Do or
the current property owners decide to not proceed with the annexation of the properties, the City has the right to
discontinue service until such time as annexation is completed.
The Development Review Committee approved the Intent to Annex for the property located at 430 Whittier
Avenue at a meeting held on November 23, 2015.
Issue:
Approval and execution of the Intent to Annex Agreement with Ngoc Do to provide water service to his property
at 430 Whittier Avenue.
Recommendations
The Staff recommends that the Mayor and City Commission approve of this Intent to Annex request for Ngoc
Do to provide water service to his property at 430 Whittier Avenue and authorize the Mayor and City Clerk to
execute the Intent to Annex Agreement.
Attachments:
1) Map showing property location
2) Annexation Agreement for the parcel
Financial Impact:
There is no financial impact to the City.
Type of Item: (please mark with an "x')
Public Hearing For Clerk's Dept Use:
Ordinance First Reading X Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
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 N/A
Reviewed by Finance Dept. N/A
Reviewed by 0 N/A
2
430 Whittier Avenue
Location Map
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THIS INSTRUMENT
SHOULD BE RETURNED TO:
Scott A. Cookson, Esq.
Shuffield, Lowman & Wilson, PA
Gateway Center
1000 Legion Place, Ste 1700
Orlando, FL 32801
P.O. Box 1010
Orlando, FL 32802-1010
AFTER RECORDING RETURN TO:
City Clerk
CITY OF OCOEE
150 North Lakeshore Drive
Ocoee, Florida 34761
Tax Parcel Identification Number 17-22-28-3624-04-040
ANNEXATION AGREEMENT
[Water Service]
THIS ANNEXATION AGREEMENT (the "Agreement") is made and entered into this _
day of 20 , by and between the CITY OF OCOEE, a Florida municipal corporation,
whose mailing address is 150 N. Lakeshore Dr., Ocoee, Florida 34761 (the "City") and Ngoc Do
and Hang Ho whose mailing address is 430 Whittier Avenue, Ocoee, FL 34761 (the
"Owner").
WITNESSETH:
WHEREAS, the Owner owns certain real property located at 430 Whittier Avenue,
Ocoee, FL 34761, Tax Parcel Identification Number 17-22-28-3624-04-040 as more
particularly described in Exhibit "A" attached hereto and by this reference made a part hereof(the
"Property"); and
WHEREAS, the Property is located within the City water territorial areas as set forth in the
Territorial Agreements (as defined below); and
WHEREAS, the Property is located within the Joint Planning Area as defined in Joint
Planning Area Agreement dated February 11, 1994 between the City and Orange County as it may be
amended from time to time (the "Joint Planning Area Agreement"), but the Property does not
currently meet the statutory requirements for voluntary annexation under the provisions of Section
171.044,Florida Statutes; and
WHEREAS, the Owner of the Property has requested, and the City has agreed, subject to the
terms, conditions and limitations hereinafter set forth, that the City shall provide water service to the
Property; and
WHEREAS, in consideration of the City providing water service to the Property, the Owner
desires to voluntarily petition the City to annex the Property pursuant to Section 171.044, Florida
006.188179.1
Statutes; provided, however, at this time the City cannot annex the Property because the Property
does not currently meet the statutory requirements for voluntary annexation under the provisions of
Section 171.044,Florida Statutes; and
WHEREAS,the parties acknowledge and agree that this Agreement constitutes a petition for
the voluntary annexation of the Property pursuant to Section 171.044, Florida Statutes; and
WHEREAS, the Owner agrees that at the time the City makes a determination that the
Property meets the statutory requirements for voluntary annexation under the provisions of Section
171.044, Florida Statutes, and upon the request of the City, the Owner shall execute all applications
and documents required by the City, pay all applicable fees, costs and expenses, and provide all
documentation required by Florida law, including, but not limited to, Section 171.044, Florida
Statutes, necessary for the voluntary annexation of the Property.
NOW, THEREFORE, in consideration of the premises and the mutual promises and
agreements set forth herein and other good and valuable consideration the receipt of which is hereby
acknowledged and intending to be legally bound hereby, the parties hereto do hereby agree as
follows:
SECTION 1. Recitals. The Recitals set forth above are true and correct and by this
reference are incorporated herein as part of this Agreement.
SECTION 2. Annexation.
A. The Owner and the City acknowledge and agree that this Agreement constitutes a
petition for the voluntary annexation of the Property pursuant to Section 171.044, Florida
Statutes. The Owner and the City further acknowledge and agree that the petition cannot be
processed at this time because the Property does not meet the statutory requirements for
voluntary annexation under the provisions of Section 171.044, Florida Statutes.
B. The City shall have the right, but not the obligation, to process the petition;
provided, however, that the petition shall not be processed by the City unless and until a
determination is made by the City, in its sole and absolute discretion, that the Property meets the
statutory requirements for voluntary annexation under the provisions of Section 171.044, Florida
Statutes, or such other provisions of the Florida Statutes as may then be applicable to voluntary
annexations. Following such determination by the City and upon the written request of the City,
the Owner shall within thirty (30) days of receipt of such written request from the City (i)
execute all applications and documents required by the City at the time of such request in order
to process the Owner's petition for voluntary annexation including, but not limited to, the
Application for Annexation and Initial Rezoning Consistent with the Ocoee Comprehensive Plan
and the Annexation and Initial Zoning Hold Harmless Agreement; (ii) pay all applicable fees,
costs and expenses associated with the petition for voluntary annexation as required by the City;
and(iii) provide all documentation required by Florida law, including, but not limited to, Section
177.044,Florida Statutes, for the voluntary annexation of the Property including, but not limited
to, a metes and bounds legal description of the Property. Following the Owner's compliance
with the foregoing,the City shall have the right, but not the obligation,to process this petition for
voluntary annexation without further action and/or request of the Owner.
006.188179.1
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C. In the event the City determines, in its sole and absolute discretion, that the
requested annexation is inconsistent with the Ocoee Comprehensive Plan, the Owner must apply
for a Comprehensive Plan Amendment and pay the applicable development review fees in
connection therewith. In the event the City determines, in its sole and absolute discretion, that a
developer agreement is required in connection with the annexation, then the Owner must pay the
applicable development review fees in connection therewith. The Owner shall pay such
additional development review fees as may be required by the Code of the City of Ocoee in
effect at the time of annexation.
D. The Owner acknowledges and agrees that this Agreement does not in any way
obligate or require the City to annex the Property or grant to the Owner any particular zoning
which may be requested in connection with such annexation.
E. The Owner acknowledges and agrees that any zoning granted to the Owner in
connection with the Property shall be consistent with the terms and conditions of the Joint
Planning Agreement as it may be amended from time to time.
SECTION 3. Water Service.
A. Subject to the terms, conditions and limitations set forth in this Agreement, the
City agrees to provide water service to the Property upon compliance by the Owner with all
applicable regulations of the City and the payment all fees, costs and expenses associated
therewith. The Owner shall execute all developer agreements for water as required by the City
in connection with the provision of water service to the Property.
B. This Agreement does not in any way reserve any water capacity or guarantee the
availability thereof.
C. The Owner acknowledges and agrees that for so long as the Property is not
located within the corporate limits of the City, the monthly rates and charges for water service as
established by the City from time to time shall be charged at the same rate charged to consumers
within the corporate limits of the City plus a surcharge equal to fifteen percent (15%) of such
monthly rates and charges for water service or such other surcharge as the City may impose from
time to time. The Owner agrees to pay all such charges for water service and surcharges as
required by the City.
D. The Owner acknowledges and agrees that the Property is not located in the
corporate limits of the City and that water capital charges as established by the City from time to
time shall be charged at the same rate to consumers within the corporate limits of the City plus a
surcharge equal to fifteen percent (15%) of such water capital charges or such other charges as
the City may impose from time to time. The Owner agrees to pay all water capital charges and
surcharges as required by the City.
SECTION 4. Agreement Runs with the Land. In consideration of the City providing
water service to the Property, the Owner and the City acknowledge and agree that this
Agreement is irrevocable and, further, this Agreement and all other rights and obligations of the
parties hereunder are intended to and shall run with the Property, and shall bind, and inure to the
benefit of,the parties hereunder and their respective successors in title.
006.188179.1
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SECTION 5. Representations.
A. The Owner hereby warrants and represents to the City that the Owner currently
owns fee title to the Property and has full power and authority to enter into this Agreement and
that the Property is free and clear of all liens and encumbrances [except for the lien of the
mortgages referenced in the Joinder, Consent and Subordination attached hereto].
B. The City makes no representations or warranties with regard to this Agreement
and reserves the right to process Owner's petition for voluntary annexation in its sole and
absolute discretion.
SECTION 6. Title Evidence and Survey.
A. As a condition precedent to the execution of this Agreement by the City, the
Owner shall provide title evidence, in a form and substance satisfactory to the City, showing the
Owner as the owner of fee simple title to the Property. Such title evidence shall also show
whether the Property is encumbered by a mortgage or otherwise. In the event the Property is
encumbered, the Owner shall provide a Joinder, Consent and Subordination of all mortgagees to
this Agreement prior to the execution of this Agreement by the City.
B. Unless the Property is a platted lot as shown in the title evidence required above,
as a condition precedent to the execution of this Agreement by the City,the Owner shall provide
a survey in accordance with the minimum technical standards for land surveys set forth in
Chapter 61G17-6, Florida Administrative Code. Such survey shall be consistent with the legal
description of the Property set forth in Exhibit"A".
SECTION 7. Notices. Any notice required to be given hereunder shall be in writing and
shall be delivered in person or by certified mail, postage paid, return receipt requested as follows.
If such notice is to be given to the City, such shall be given at the address set forth above. If
such notice is to be given to the Owner, such shall be given at the address shown in the tax
collector's records for the Tax Parcel Identification Number set forth above. Any notice,
direction or other communication delivered or mailed, as directed above shall be deemed to be
delivered as of three (3) days after the date of mailing or, if delivered personally,when received.
SECTION 8. Defaults and Remedies. IN THE EVENT THE OWNER FAILS TO
COMPLY WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND
SUCH FAILURE CONTINUES FOR THIRTY (30) DAYS AFTER WRITTEN NOTICE
FROM THE CITY, THE CITY MAY DISCONNECT AND TERMINATE ANY WATER
SERVICE PROVIDED TO THE PROPERTY. THE OWNER HEREBY CONSENTS TO
SUCH DISCONNECTION AND TERMINATION OF WATER SERVICE AND EXPRESSLY
WAIVES ANY CLAIMS BASED UPON THE DISCONNECTION AND TERMINATION OF
SUCH WATER SERVICE BY THE CITY.
OWNER'S INITIALS: 1 IL
006.188179.1
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SECTION 9. Indemnification.
A. The Owner hereby agrees to indemnify and save the City harmless from and
against all losses, costs, expenses, claims, damages, judgments, liabilities and causes of action
whatsoever (collectively, "Claims") including reasonable attorneys' fees and paralegal fees both
at trial and at appellate levels, arising out of or alleged to have arisen out of this Agreement or
been occasioned, in whole or in part, by the exercise of the City of its rights granted hereunder.
The Owner shall use its best efforts to promptly notify the City in writing of any Claim and shall
provide the City with information regarding the Claim as the City may reasonably request, but
the failure to give such notice or provide such information shall not diminish the Owner's
obligations under this Section.
B. No Claim whatsoever shall be made or asserted against the City by the Owner for
or on account of anything done or as a result of anything done or omitted to be done in
connection with this Agreement.
SECTION 10. Recording. The Owner acknowledges and agrees that the City shall
record this Agreement in the Public Records of Orange County, Florida, and the Owner agrees to
pay all costs associated therewith.
SECTION 11. Territorial Agreements. The references herein to the Territorial
Agreements refer to (i) the Orange County/City of Ocoee Service Territorial Agreement
(Contract No. S-87-8), dated June 8, 1987, as amended by the First Amendment thereto dated
February 11, 1994, as it may be amended from time to time, and (ii) the Orange County/City of
Ocoee Water Service Territorial Agreement (Contract No. W-88-06), dated November 14, 1988,
as amended February 11, 1994, as it may be amended from time to time.
SECTION 12. Real Property Taxes for Conveyance. In the event of any conveyance
of real property by the Owner to the City, real property taxes in connection with the conveyance
shall be prorated as of the day before the acceptance of the conveyance by the City and the
prorated amount shall be paid by the Owner and shall be escrowed in accordance with the
provisions of Section 196.295, Florida Statutes.
SECTION 13. Miscellaneous.
A. ANY FUTURE OWNERS OF THE PROPERTY SHALL TAKE TITLE TO
THE PROPERTY SUBJECT TO THIS AGREEMENT AND BY ACCEPTING A DEED OF
CONVEYANCE TO THE PROPERTY, AGREE TO BE BOUND BY THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
B. The Property shall be deemed a single parcel and any subparcels of the Property
which are created by subdivision or by any other means shall be subject to the terms and
conditions of this Agreement, subsequent sale and individual ownership notwithstanding.
C. This Agreement may not be modified or amended, or any term or provision hereof
waived or discharged except in writing, in recordable form, signed by the parties hereto, or their
respective successors and assigns. Any such modification or amendment shall not be effective
until recorded in the Public Records of Orange County, Florida.
006.188179.1
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D. This Agreement shall be construed and enforced in accordance with, and
governed by,the laws of the State of Florida.
E. All of the terms of this Agreement, whether so expressed or not, shall be binding
upon the respective successors, assigns and legal representatives of the parties hereto and shall
inure to the benefit of and be enforceable by the parties hereto and their respective successors,
assigns and legal representatives.
F. The headings of this Agreement are for reference only and shall not limit or
otherwise affect the meaning thereof.
G. In the event the either party institutes a legal proceeding against the other party, to
enforce the terms of this Agreement or for breach of any of the terms, conditions or covenants of
this Agreement, the prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees,paralegal fees and costs,both at the trial and appellate levels.
H. In the event a third party institutes a legal proceeding against the City and/or the
Owner, regarding the enforceability of this Agreement or any other matters arising out of or
related to this Agreement, the annexation of the Property or the provision of water service, then
in such event the Owner shall pay all costs, fees, charges, and expenses of the City relative
thereto, including but not limited to attorney's fees and paralegal fees at both the trial and
appellate levels.
I. In addition to each and every remedy now or hereafter existing at law or in equity,
the parties hereto expressly agree that City shall have the right to enforce this Agreement by an
action for specific performance.
J. As from time to time requested by the City, the Owner agrees to execute such
additional documents as may be necessary in order to effectuate the provisions of this
Agreement.
K. This Agreement embodies and constitutes the entire understandings of the parties
with respect to the subject matter hereof and all prior or contemporaneous agreements,
understandings,representations and statements, oral or written, are merged into this Agreement.
L. The attached Exhibits are part of this Agreement as though fully set forth in this
Agreement.
006.188179.1
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IN WITNESS WHEREOF,the City has "CITY"
caused this Agreement to be executed as of the
day and year first written above. Signed, sealed CITY OF OCOEE,a Florida municipal
and delivered corporation
in the presence of:
By:
, Mayor
Signature
Attest:
Print/Type Name Beth Eikenberry, City Clerk
(SEAL)
Signature
Print/Type Name
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE,FLORIDA. COMMISSION AT A MEETING
APPROVED AS TO FORM AND HELD ON ,20_
LEGALITY UNDER AGENDA ITEM NO.
this day of ,20_
SHUFFIELD,LOWMAN& WILSON,PA
By:
City Attorney
STATE OF FLORIDA
COUNTY OF ORANGE
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgements, personally appeared 4.-SCOTT
and BETH EIKENBERRY, personally known to me to be the Mayor and City
Clerk, respectively, of the CITY OF OCOEE, a Florida municipal corporation, and that they
severally acknowledged executing the same on behalf of said municipality 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
, 20_.
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):
006.188179.1
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[EXECUTION PAGE FOR INDIVIDUAL OWNER]
IN WITNESS WHEREOF, the Owner has caused this Agreement to be duly executed the
(27y'"' day of , 201,/
Signed, sealed and delivered
in the presence of: "OWNER"
Si: .ture ..r� I
Ai Ab:I r!/
'rint/Type Name
Signature
P t/Type 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 acknowledgements, personally appeared
ftp e OD gn i t+ty fiB , who •_ •- _.•, e ..- e [X] produced
�L. 7r;✓ers
,'tens-e as identification, and that he acknowledged executing the
foregoing instrument for the purposes and uses therein described.
WITNESS my hand and official seal in the County and State last aforesaid thisa day of
Mvdmbzr , 2015
AVKI/
Signature of Notary
S.:V:;400 KATHERINE A.HEARD ,l
MY COMMISSION#FF 041553 7.er/n 1 r 7 �r�
ill° EXPIRES:November 14,2017 Name of Notary(Typed,Printed or Stamped)
�r+rFOF F`00�r Bonded Thru Budget Notary Services
Commission Number(if not legible on seal):
My Commission Expires(if not legible on seal):
006.188179.1
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JOINDER, CONSENT AND SUBORDINATION
The undersigned hereby certifies that is the
holder of a mortgage, lien or other encumbrance upon the above described property, and that the
undersigned hereby joins in and consents to the foregoing instrument by the owner thereof and agrees
that its mortgage, lien or other encumbrance,which is recorded in Official Records Book
Page , in the original sum of $ , of the Public Records of Orange
County of Florida, shall be subordinated to the foregoing instrument.
Signed, sealed and delivered "LENDER"
in the presence of:
By:
Signature
Print Name:
Print/Type Name
Its:
(CORPORATE SEAL)
Signature
Print/Type Name
STATE OF
COUNTY OF
THIS IS TO CERTIFY, that on this day of , 20 , before
me, an officer duly authorized to take acknowledgements in the State and County aforesaid,
personally appeared , as of
who [ ] is
personally known to me or [ ] produced as identification, and that who
acknowledged that he as the individual described in and who executed the foregoing instrument
and acknowledged the execution thereof to be his/her free act and deed as such officer thereunto duly
authorized,that the official seal of said corporation is duly affixed thereto.
IN WITNESS WHEREOF,I have hereunto set my hand and seal on the above date.
NOTARY PUBLIC
Name:
My Commission expires:
006.188179.1
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EXHIBIT "A"
LEGAL DESCRIPTION
Hillcrest Heights M198, Lots 4 & 5, Block D
006.188179.1
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