Item #02 Approval of Development Agreement for Legacy Lifestyles Senior Housing of Ocoee 4kir
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AGENDA ITEM COVER SHEET
Meeting Date: January 17, 2017
Item #
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�� 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.