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Item #02 Approval of Development Agreement for Legacy Lifestyles Senior Housing of Ocoee 4kir ( )( (. )(1Y Honda rida AGENDA ITEM COVER SHEET Meeting Date: January 17, 2017 Item # y�, �� t Reviewed By: Contact Name: Mike Rumer, City Planner Department Director: Contact Number: 407-905-3157 City Manager: Subject: Legacy Lifestyles Senior Housing of Ocoee (FKA All Sports Memory Care) Approval of Development Agreement Project# LS-2016-006 Commission District# 3 — Richard Firstner ISSUE: Should the Honorable Mayor and City Commission approve the Development Agreement for the Legacy Lifestyle Senior Housing? BACKGROUND SUMMARY: On December 12, 2013, the City Commission approved a Preliminary/Final Site Plan and Development Agreement. The Preliminary/Final Site Plan consisted of a three-story, 112,269 square feet, 120 bed Memory Care/Assisted Living Facility. The facility provided one access point at Roberson Road. In addition, a 220 feet left-turn lane into the site will be provided. The applicant was required and has recently dedicated a 20 feet wide tract of land to the City of Ocoee for future right-of-way along Roberson Road. Water, sanitary sewer, and reclaimed water is provided by the City of Ocoee. Subsequent to the All Sports Memory Care approval, the project was placed on hold and the Development Agreement was not executed. The new property owner, Legacy Lifestyle Senior Living of Ocoee (Owner) has assumed the site plan as it was approved. The Owner had the plan re-engineered with the same footprint and elements of the All Sports Memory Care site plan approved by the City Commission. There are no new improvements to the site plan. DISCUSSION: The proposed Development Agreement stipulates the Owner will develop the project based on the approved site plan as well as other unique development requirements. The Development Agreement provides for the following: a) Payment to the Southwest Development Utility Project for water and sewer. The Owner agrees to pay a percentage share of the cost for the project; b) Owner agrees to cover percentage share cost of the remaining portion of work that is required to be done. Both a & b equals $211,500.00; c) The Owner is required to construct the remaining portion of the Southwest Utility Project; d) The City agrees to credit any cost over and above the Owners percentage share. The site plan for Legacy Lifestyle Senior Housing of Ocoee is ready to be approved by staff. After the Development Agreement is signed and executed, the Owner will begin the site development and building construction. RECOMMENDATION: Staff recommends the Honorable Mayor and City Commission approve the Development Agreement for Legacy Lifestyle Senior Housing of Ocoee. Attachments: Development Agreement Financial Impact: None Type of Item: [ ] Public Hearing For Clerk's Dept Use: ❑ Ordinance First Reading ZI. Consent Agenda ❑ Ordinance First Reading [ ] Public Hearing ❑ Resolution ❑ Regular Agenda [x] Commission Approval ❑ Discussion&Direction M 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 ( ) ❑ N/A THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Scott A.Cookson, Esq. SHUFFIELD, LOWMAN&WILSON,P.A. 1000 Legion Place,Suite 1700 Post Office Box 1010 Orlando, FL 32801 (407)581-9800 RETURN TO: For Recording Purposes Only CITY OF OCOEE City Clerk 150 N. Lakeshore Drive Ocoee, FL 34761 DEVELOPMENT AGREEMENT (LEGACY LIFESTYLES SENIOR HOUSING OF OCOEE) THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the day of , (the "Effective Date") by and between Legacy Lifestyles Ocoee Property, LLC, a Delaware limited liability company, whose address is 2300 Curlew Road, Suite 100 Palm Harbor Florida 33558 (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 (hereinafter referred to as the "City"). WITNESSETH: 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, on February 18, 2014,the City approved a development agreement that was never executed by the predecessor Owner of the Property; and WHEREAS, pursuant to the petition of the Owner, on the Ocoee City Commission approved the Preliminary/Final Site Plan under the Ocoee Land Development Code; and WHEREAS, the Owner and the City desire to execute this Agreement in order to fully incorporate the commitments of the Owner related to the development of the Property. 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. The above recitals are true and correct and incorporated herein by this reference. Section 2. Development of the Property. A. Preliminary/Final Site Plan. The Owner hereby agrees to develop the Property in accordance with that certain Preliminary/Final Site Plan prepared by Madden Moorhead & Stokes, Inc., dated May 16, 2016, and stamped received by the City of Ocoee on May 25, 2016 (hereinafter referred to as the "Plan"). The Plan is hereby incorporated herein by reference as if fully set forth herein. B. Conditions of Approval. 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 in the Plan. C. Compliance with Code and Approved Plans. Except as otherwise expressly set forth in this Agreement and the Plan it is agreed that (1) in its pursuit of development of the Property in accordance with the Plan, the Owner shall comply with the zoning and subdivision regulations of the City as set forth in the Ocoee Land Development Code, in effect at the time of approval of the Plan, and (2) all preliminary subdivision plans, final subdivision plans, and final site plans for the Property or any portion thereof shall conform to the Ocoee Land Development Code requirements in effect at the time of approval of any such plans. In the event of any conflict between the provisions of the Ocoee Land Development Code, in effect at the time of approval of the Plan, and this Agreement, it is agreed that the provisions of this Agreement shall control. This provision shall sunset one year after execution of this agreement by the second party hereto. Following sunset of this provision, in its pursuit of development of the Property in accordance with the Plan, the Owner shall comply with the zoning and subdivision regulations of the City as set forth in the Ocoee Land Development Code, as it may be amended from time to time, and (2) all preliminary subdivision plans, final subdivision plans, and final site plans for the Property or any portion thereof shall conform to the Ocoee Land Development Code requirements, as may be amended from time to time. Section 3. Utilities (Water and Wastewater). Owner hereby acknowledges that the development shall create certain potable water and wastewater demands on the City's water distribution and wastewater collection system including future improvements as addressed in the Southwest Development Utility Project (herein referred to as Southwest Project). The Owner acknowledges that the City has designed the Southwest Project, and has permitted and constructed, at the City's expense, a portion of the Southwest Project (herein referred to as Phase I). The parties agree that the total of the Owner's share of cost incurred by the City in permitting and constructing Phase 1 of the Southwest Project, in addition to the Owner's share of the remaining portion of Southwest Project, is $211,500.00 (herein referred to as Owner's Share). The Owner is required to construct the remaining Southwest Project improvements that are needed to support the Owner's development in accordance with the Plan. The City and Owner agree that any cost incurred by the Owner over and above Owner's Share will be eligible for reimbursement by the City up to an amount equal to the construction cost minus the Owner's Share. In no event will any reimbursement by the City exceed the amount of Water and Wastewater Capital Charges (as defined in Chapter 173 of the City of Ocoee Code of Ordinances, in effect as of the date of the issuance of a building permit from the City or as of the date a FDEP permit is issued, whichever comes first) to be assessed by the City against the Property in its pursuit of development in accordance with the Plan. In the event the Water and Wastewater Capital Charges, when combined with the Owner's Share, exceed the actual construction cost incurred by the Owner, the Owner agrees to pay the City the difference between the Capital Charges and the Owner's Share before the Certificate of Occupancy is issued. Section 4. Notice. Any notice delivered with respect to this Agreement shall be in writing and be deemed to be delivered (whether or not actually received) when (i) hand delivered to the other party at the address appearing on the first page of this Agreement, (ii) when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, or (iii) when delivered by Federal Express, or similar overnight delivery service, 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 5. Covenant Running with the Land. This Agreement shall run with the Property and inure to and be for the benefit of the parties hereto and their respective successors and assigns and any person, firm, corporation, or entity who may become the successor in interest to the Property or any portion thereof Section 6. Recordation of Agreement. 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, including but not limited to the status of the obligations and payments required by Section 3 above. Section 7. 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 8. 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 9. 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 10. Further Documentation. The parties agree that at any time following a request therefor by the other party, each shall execute and deliver to the other party such further documents and instruments, in form and substance reasonably necessary to confirm and/or effectuate the obligations of either party hereunder. Section 11. Specific Performance. 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. Section 12. Attorneys' Fees. In the event that either party finds it necessary to commence an action against the other party to enforce any provision of this Agreement or because of a breach by the other party of any terms hereof, the prevailing party shall be entitled to recover from the other party its reasonable attorneys' fees, legal assistants' 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 13. 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 14. 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 15. Severability. If any 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. Section 16. Effective Date. The Effective Date of this Agreement shall be the day this Agreement is properly recorded in the Public Records of Orange County, Florida, pursuant to Fla. Stat. 163.3239. [Signature Pages to Follow] IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be executed by their duly authorized officers as of the day and year first above written. OWNER: Signed, sealed and delivered in the Legacy Lifestyles Ocoee Property, LLC presence of: By: Legacy Lifestyles Ocoee Project LP, a Delaware limited partnership, as its sole Member By: Legacy Lifestyles Ocoee Project GP LLC, a Delaware limit-• liabilit company, as its general •.r n- By: Alai/_ Print Name E,2.2. 11,artZ''" ►r avi• l.ia, as Vice President Print Name'ZkeAl. T. eat 4MJ (Corporate Seal) STATE OF Flo /i COUNTY OF ,1/,t. The foregoing instrument was acknowledged before me this 2.0 day of 2016, by David S. Coia, as Vice President of LEGACY LIFESTYLES OCOEE PROJECT GP LLC, a Delaware limited liability company, as general partner of LEGACY LIFESTYLES OCOEE PROJECT LP, a Delaware limited partnership, as sole member of LEGACY LIFESTYLES OCOEE PROPERTY LLC, a Delaware limited liability company, on behalf of said company, partnership and corporation. Such person is personally known to me or has produced as identification. (NOTARY SEAL) 2 2-2 g0a3 (Notary c nature) _ (Name typed,printed or stamped) • Commission No.: FF/.090-50 •TAY pVB��i A � o M.E.SASSONE My Commission Expires: 4 1. /2 2 /( l':;:14:1 Notary Public-State of Florida :;._E My Comm.Expires Apr 2,2018 4 %.,FO , Commission#FF 109050 CITY: Signed, sealed and delivered in the presence of: CITY OF OCOEE,FLORIDA By: Print Name: Rusty Johnson,Mayor Attest: ,City Clerk Print Name: (SEAL) FOR USE AND RELIANCE ONLY BY THE APPROVED BY THE OCOEE CITY CITY OF OCOEE,FLORIDA. Approved as COMMISSION AT A MEETING HELD ON to form and legality this UNDER AGENDA day of , ITEM NO. SHUFFIELD,LOWMAN&WILSON,P.A. 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 and County aforesaid to take acknowledgments, personally appeared RUSTY JOHNSON, and , 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 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): EXHIBIT "A" THE PROPERTY The land referred to hereinbelow is situated in the County of Orange, State of Florida, and is described as follows: A PORTION OF THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF SAID SECTION 5, TOWNSHIP 22 SOUTH, RANGE 28 EAST, ORANGE COUNTY, FLORIDA BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE SOUTHWEST CORNER OF SOUTHWEST % OF THE NORTHWEST % OF SECTION 5, TOWNSHIP 22 SOUTH, RANGE 28 EAST, ORANGE COUNTY, FLORIDA; THENCE RUN NORTH 89°35'56" EAST, ALONG THE SOUTH LINE OF THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF SAID SECTION 5, A DISTANCE OF 1321.84 FEET, TO THE SOUTHEAST CORNER OF SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF SAID SECTION 5; THENCE RUN NORTH 00°09'18" WEST, ALONG THE EAST LINE OF THE SOUTHWEST 1/4 OF THE NORTHWEST %4 OF SAID SECTION 5, A DISTANCE OF 30.00 FEET, TO A POINT ON THE NORTH RIGHT-OF-WAY LINE OF ROBERSON ROAD; THENCE RUN SOUTH 89°35'56" WEST, ALONG THE SAID NORTH RIGHT- OF-WAY LINE, A DISTANCE OF 640.00 FEET, TO THE POINT OF BEGINNING; THENCE LEAVING SAID NORTH RIGHT-OF-WAY LINE, RUN NORTH 00°09'28" WEST, A DISTANCE OF 200.02 FEET; THENCE RUN SOUTH 89°59'38" EAST, A DISTANCE OF 368.32 FEET; THENCE RUN NORTH 08°36'00", A DISTANCE OF 15.36 FEET; THENCE RUN NORTH 00°37'13" EAST, A DISTANCE OF 727.61 FEET; THENCE RUN SOUTH 89°35'56" WEST, A DISTANCE OF 398.15 FEET; THENCE RUN SOUTH 00°09'18" EAST, A DISTANCE 1155.00 FEET, TO A POINT ON THE AFORESAID NORTH RIGHT-OF-WAY LINE; THENCE RUN NORTH 89°35'56" EAST, ALONG THE SAID NORTH RIGHT-OF- WAY LINE,A DISTANCE OF 20.00 FEET, TO THE POINT OF BEGINNING. EXHIBIT `B" CONDITIONS OF APPROVAL 1. 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 shall be construed as such an exemption. 2. This project shall be developed in one (1)phase. 3. Each phase of the project will stand on its own with respect to public services (sewer, water, stormwater management, access and other related services). 4. Except as specifically noted on this plan, development of this property shall be consistent with the requirements of the City of Ocoee Code. 5. Nothing herein shall be construed to waive any provision of the Land Development Code except to the extent expressly set forth on a waiver table or explicitly set out on the approved development plans. 6. Any damage caused to any public streets as a result of the construction activities related to the project shall be promptly repaired by the Owner to the applicable governmental standards at the Owner's sole cost and expense. 7. There shall be no access from the property to any public streets except at the approved locations shown on the Final Site Plan. 8. All commercial lots will be a minimum of one acre in size. 9. All finished floor elevations will exceed the 100-year flood plain by a minimum of two feet. 10. The Developer is to protect and prevent any disturbance, siltation, or other construction within the wetland areas inside the 100-year flood elevation. Those areas are to be roped off during construction and silt fences installed to eliminate any possibility of disturbance in those areas during construction. 11. All existing structures (including buildings, power lines, existing aerial and utility facilities) will be removed and/or terminated prior to or during construction of the development replacing those uses. 12. Intentionally Deleted. 13. Intentionally deleted. 14. Existing trees 8' 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. 15. The existing grades will be maintained as much as possible to preserve existing protected trees. 16. Intentionally deleted. 17. 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 prior to any tree removal. No clearing permits will be issued for site work or building construction until the trees to be preserved have been clearly marked with tree protection barriers. 18. No person shall undertake land clearing or the removal of any protected trees without first obtaining a permit from the Building Department. The removal of protected trees shall be minimized to the maximum extent possible and no authorization shall be granted to remove a tree if the Developer has failed to take reasonable measures to preserve the trees on site. 19. Intentionally deleted. 20. Intentionally deleted. 21. All utilities will be placed around existing protected trees to be preserved. 22. All utilities including electrical, cable, TV, and telephone and including on-site existing overhead wires shall be placed underground. 23. Intentionally deleted. 24. Intentionally deleted. 25. 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 an easement in recordable form with respect to the foregoing. 26. Intentionally deleted. 27. Intentionally deleted. 28. Intentionally deleted. 29. Intentionally deleted. 30. The access road to the project off of Roberson Road is a private road owned, with access and utility easements granted to the City of Ocoee. 31. The Developer shall construct appropriate curbs cuts to enable construction of 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. All sidewalks shall be constructed at the time of development of the Property. 32. Parking shall be provided in accordance with the City of Ocoee Land Development Code. 33. All site improvements including entry features, walls, landscaping and sidewalks along all roads, as well as landscaping around the retention pond tracts and the lift station shall be completed prior to issuance of the Certificate of Completion for those corresponding phases. 34. Street lights meeting current code requirements shall be installed by the Developer prior to issuance of a Certificate of Completion 35. Intentionally deleted. 36. The lift station shall be fenced with a black, vinyl chain link fence with posts and rails painted black. Such lift station shall also be screened with a hedge-type shrubbery such as viburnum or ligustrum 37. Each fire hydrant shall be painted OSHA yellow in color and a blue reflective marker shall be affixed to the street in the center of the lane closest to each hydrant. 38. The stormwater system, including all pipes, inlets, manholes and structures, together with the retention ponds, will be owned, operated and maintained by the owner of the Property. 39. Intentionally deleted. 40. All stormwater management ponds will be unfenced with maximum 5:1 side slopes into the pond. 41. Intentionally deleted. 42. Intentionally deleted. 43. The Developer shall convey a twenty (20) foot tract of land to the City of Ocoee along the south property line of the subject property adjacent to the north side of Roberson Road R-O-W, as reflected on the Preliminary/Final Site Plan date stamped as received by the City of Ocoee on May 25, 2016,to the City within 60 days from approval of the Final Site Plan, but in no event later than the issuance of the infrastructure and/or building permits for the subject project. The conveyance shall be by special warranty deed free and clear of all liens and encumbrances except for those matters acceptable to the City. The form of the special warranty deed shall be subject to the approval of the City. The Developer shall, contemporaneously with the conveyance of such property,provide to the City a current attorney's opinion of title, or a current title commitment to be followed by a policy of title insurance, evidencing that fee simple title to such property is free and clear of all liens and encumbrances except for those matters acceptable to the City. The costs and expenses related to the conveyance of such property, including the cost of title work, shall be borne solely by the Developer. Real property taxes on such property shall be prorated as of the day of the City's acceptance of the conveyance of the same, and the prorated amount of such real property taxes attributable to the Developer shall be paid and escrowed by such owner in accordance with the provisions of Section 196.295, Florida Statutes; provided, however, that if the conveyance occurs between November 1 and December 31, then the Developer shall be responsible for real property taxes for the entire year. 44. The Developer shall convey a Conservation Easement to the City within sixty (60) days from approval of the Final Site Plan, but in no event later than the issuance of the infrastructure and/or building permits for the subject project. The Conservation Easement shall be in a form that is acceptable to the City of Ocoee. The Developer shall provide a sketch and legal description for the Conservation Easement at no cost to the City. The sketch and legal description shall reflect that the portion of the property that is the subject of the Conservation and Drainage as depicted on the Preliminary/Final Site Plan date stamped as received Madden Moorhead & Stokes, Inc., dated May 16, 2016, and stamped received by the City of Ocoee on May 25, 2016.