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HomeMy WebLinkAboutVI (C) Lake Lotta Mall PUD Final Subdivision Plan/Final Site Plan Processing Agreement • AGENDA 3-21-95 Item VI C I FOLEY & LARDN ER III NORTH ORANGE AVENUE, SUITE 1800 j ORLANDO, FLORIDA 32801 TELEPHONE 1407) 423-7656 FACSIMILE (4071 648-1743 TAMPA, FLORIDA MAILING ADDRESS: MILWAUKEE, WISCONSIN JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN TALLAHASSEE, FLORIDA WASHINGTON, D.C. WEST PALM BEACH. FLORIDA ORLANDO, FL. 32802-2193 ANNAPOLIS, MARYLAND CHICAGO, ILLINOIS MEMORANDUM TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, Esq. , City Attorney DATE: March 15, 1995 RE: Lake Lotta Mall PUD Final Subdivision Plan/Final Site Plan Processing Agreement At the meeting of January 26, 1995, the City Commission conceptually authorized the Staff to process Final Subdivision Plan/Site Plans for the Lake Lotta Mall DRI in an incremental fashion and to develop a formal Processing Agreement for the same subject to the City Commission approval. Attached hereto is a copy of Russ Wagner's Memorandum of January 20, 1995 which explained the rationale for such action. Based upon the direction of the City Commission, the Staff has proceeded to prepare a Processing Agreement. Accordingly, attached hereto is a proposed Lake Lotta Mall PUD Final Subdivision Plan/Final Site Plan Processing Agreement ("the Agreement") . The Agreement sets forth the operational procedures for processing "incremental portions" of a final subdivision plan and/or final site plan. Highlights of the proposed Agreement are as follows: 1. It is applicable only to consideration of plans related to clearing, grubbing, erosion control, mass grading, off-site road improvements and off-site utility improvements. All other development activities require approval of a complete Final Subdivision Plan and, if applicable, a complete Final Site Plan prior to the issuance of any development permits. 2. Any Incremental Portion of the Final Plan must comply with all prior City Commission approvals. 3 . A complete Final Mall Plan must be obtained within one year and the Developer must undertake development within , 1 The Honorable Mayor and City Commissioners of the City of Ocoee March 15, 1995 Page 2 one year from the date of initial approval of an Incremental Portion of the Final Plan. The Final Mall Plan must incorporate all of the approved Incremental Portions of the Final Plan. 4. The issuance of development permits are restricted. 5. A pre-construction conference is required for each submittal before any construction activities occur with respect to such submittal. 6. The Developer is proceeding at its own risk and has indemnified and held the City harmless. The City may require revisions based on its review of subsequent submittals. 7. Construction activities pursuant to a development permit issued in connection with an approved Incremental Portion of the Final Plan does not trigger the obligation to pay applicable impact fees. The proposed Agreement has been agreed to by Homart Development Co. RECOMMENDATION: It respectfully is requested that the Mayor and City Commission approve the proposed Lake Lotta Mall PUD Final Subdivision Plan/Final Site Plan Processing Agreement and authorize execution thereof by the Mayor and City Clerk, subject to Ordinance No. 95-02 becoming effective. encl. A:\LAKELT2.MEM 13/15/95 TRANSFER DISK I PER jed AGENDA 121-19: Item II "CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR• C:UN :pee S.SCOTT VAFT 6 • oCOMMISSV...... CITY OF OCOEE RUSTYJON . Q PAUL IS O 150 N.LAKESHORE DRIVE SCOTT A.GLASS �C� OCOEE,FLORIDA 34761-2258 JIM GLEASON ''1 � (407)656 2322CITY MANAGER � OF GOO`` ELLIS SHAPIRO SRP-471 STAFF REPORT DATE: January 20 , 1995 TO: The Honorable Mayor and City Commissioners�si FROM: Russ Wagner, Director of Planning Jim Shira, City Engineer/Utilities Director SUBJ : Lake Lotta Mall DRI Phasing of Final Subdivision Plans/Site Plans ISSUES: Should the Honorable Mayor and City Commissioners conceptually authorize Staff to process future Final Subdivision Plans/Site Plans for Lake Lotta Mall in an incremental fashion? BACKGROUND: The developers of the proposed Lake Lotta Mall DRI have repeatedly indicated to City staff their desire to construct the project as expeditiously as possible in order to open the mall before the end of 1996. To accomplish such an aggressive schedule, the developers have discussed with Staff possible ways in which to fast-track the Final Subdivision Plan/Site Plan review process. This would enable them to begin site work as soon as the sale of the property is consummated and the state review period for the Comprehensive Plan Amendment and DRI are completed. Specifically, the developer has asked whether final grading and stormwater management plans may be approved ahead of the remainder of the Final Plans package to permit a four-to-six month period of site work to commence while the remainder of Final Plans are completed and reviewed. DISCUSSION: Staff has reviewed the developer's request to ascertain if the Land Development Code (LDC) would permit an incremental or phased review process. After analyzing the detailed provisions of the Final Subdivision and Final Site Plan review procedures , it was determined that the LDC neither specifically permits or prohibits such an approach. For the most part , the code was not originally Lake Lotta Mall DRI Phasing of Final Subdivision Plans/Site Plans January 20 , 1995 Page 2 structured to accommodate such a large project , since the development of a regional mall project was never anticipated by the City at the time the LDC was prepared. Conceptually, staff believes that a stepped or phased approach to approval of Final Plans for a project of this magnitude is appropriate provided certain safeguards are in place . Specifically, the initial portion of the Final Plans package would need to be reviewed in a manner which implements all appropriate provisions of the PUD and Preliminary Subdivision Plan/Site Plan approval . This would include screening requirements, tree preservation provisions, wildlife protection requirements , and state stormwater management and utility permit requirements, among others . All work accomplished under the initial Final Plans submittal should be undertaken at the developer 's risk, since the City would need to have the ability to require changes if subsequent portions of the project review dictated the need for technical modifications to work already accomplished. For example, if a stormwater pipe was found to be undersized when the complete Final Plans package was reviewed, it would be the developer ' s responsibility to change the pipe in the field if it had already been installed. In order to implement a phased review procedure, staff believes that a formal agreement should be developed which outlines the specific manner in which reviews would take place. Such a document would protect the City and also identify the detailed provisions under which the developer could proceed with the project. In general , Staff believes that the all normal LDC review procedures should apply; that is, both the initial portion of the Final Plans package as well as the completed Final Plans package would go to DRC, the Planning and Zoning Commission and City Commission for approval prior to any work being initiated. STAFF RECOMMENDATION: Staff respectfully recommends that the Mayor and City Commission conceptually authorize Staff to process Final Subdivision Plans/Site Plans for the Lake Lotta Mall DRI in an incremental fashion and to develop a formal Processing Agreement for same subject to City Commission approval . RBW/cpp . t LAKE LOTTA MALL PUD FINAL SUBDIVISION PLAN/ FINAL SITE PLAN PROCESSING AGREEMENT THIS LAKE LOTTA MALL PUD FINAL SUBDIVISION PLAN/FINAL SITE PLAN PROCESSING AGREEMENT (this "Agreement") is made and entered into as of the day of March, 1995 by and between HOMART DEVELOPMENT CO. , a Delaware corporation, whose mailing address is Security Centre, Suite 529, 3500 Piedmont Road, Northeast, Atlanta, Georgia 30305 (hereinafter referred to as the "Developer") , 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") . WITNESSET H: WHEREAS, the Developer 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 Property consists of all of the lands located within the Lake Lotta Mall PUD as approved by the Ocoee City Commission on January 26, 1995 by the adoption of Ordinance No. 95-02 ("the Lake Lotta Mall PUD") ; and WHEREAS, on January 26, 1995 the Ocoee City Commission approved the following in connection with the Lake Lotta Mall PUD: (1) that certain Development Order for the Lake Lotta Mall Development of Regional Impact ("the Development Order") ; (2) that certain Lake Lotta Mall PUD Land Use Plan (date stamped as received by the City on January 20, 1995) ("the Lake Lotta Mall PUD Land Use Plan") ; (3) that certain Development Agreement (Lake Lotta Mall PUD) between the Developer, Lake Lotta, Ltd. , and the City ("the Development Agreement") ; (4) that certain Lake Lotta Mall PUD Preliminary Subdivision Plan (date stamped as received by the City on January 20, 1995) ("the Preliminary Subdivision Plan") ; and (5) that certain Lake Lotta Mall PUD Preliminary Site Plan (date stamped as received by the City on January 20, 1995) ("the Preliminary Site Plan") ; and WHEREAS, the provisions of Sections 4-3 (C) and 4-4 (G) (3) of the Ocoee Land Development Code ("the LDC") set forth certain procedures for obtaining approval of a Large Scale Final Site Plan ("a Final Site Plan") and a Final Subdivision Plan ("a Final Subdivision Plan") , respectively; and WHEREAS, the Developer has requested that the City fast track the review process associated with the approval of a Final Subdivision Plan and Final Site Plan (collectively, "a Final Plan") for the Lake Lotta Mall PUD and issue incremental or phased approvals for the Lake Lotta Mall PUD which will allow the Developer to commence development on the Property prior to final approval of a complete Final Plan meeting all of the requirements of the LDC, the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan, the Preliminary Site Plan and the rules and regulations of all other governmental entities having jurisdiction over matters addressed in a Final Plan with respect to the Lake Lotta Mall PUD (collectively, the "Final Mall Plan") ; and WHEREAS, the City has determined that the LDC does not expressly permit or prohibit incremental or phased reviews and approvals of portions of a Final Plan; and WHEREAS, the City Attorney has advised the City that it may issue incremental or phased approvals of portions of a Final Plan subject to the execution of a processing agreement between the City and the developer; and WHEREAS, the City is willing to process a Final Plan for the Lake Lotta Mall PUD on an incremental or phased review and approval basis, subject to the terms and conditions hereinafter set forth; and WHEREAS, an incremental or phased review and approval of a Final Plan for the Lake Lotta Mall PUD will allow the Developer to proceed, at the Developer's sole risk, on an expedited basis while at the same time protecting the public health, safety and welfare; and WHEREAS, the City has determined that it is in the best interest of the City to allow a Final Plan for the Lake Lotta Mall PUD to be processed on an incremental or phased basis. 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. Agreement to Process Incremental Portions of the Final Plan. (A) Subject to the terms and conditions set forth in this Agreement, the City hereby agrees to review and approve, approve with conditions, or disapprove on an incremental or phased basis the Final Subdivision Plan and the Final Site Plan for the Lake Lotta Mall PUD. For the purposes of this Agreement the complete Final Plan for the Lake Lotta Mall PUD which meets all of the requirements of the LDC, the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan, the Preliminary Site Plan and the rules and regulations of all other applicable governmental jurisdictions and further complies with all permits issued for the Property shall be referred to as "the Final Mall Plan"; provided, however, that all references herein to the Final Mall Plan shall only include the Final Subdivision Plan for the Property and the Final Site Plan for the Mall and such Peripheral Retail Parcels with respect to which the Developer may, at its option, elect to seek Final Site Plan approval. For the purposes of this Agreement, an incremental or phased portion of the Final Subdivision Plan and/or Final Site Plan for the Lake Lotta Mall PUD which does not meet all of the requirements for the Final Mall Plan, but does meet all requirements of the LDC, the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan, the Preliminary Site Plan and the rules and regulations of all other applicable governmental jurisdictions and further complies with all permits issued for the Property to the extent the foregoing are applicable to the incremental or phased portion of the Final Subdivision Plan and/or Final Site Plan submitted for review and approval shall be referred to as "an Incremental Portion of the Final Plan". Specifically, the City agrees to initially review and approve, approve with conditions, or disapprove the Clearing, Grubbing, Erosion Control and Mass Grading Plans as an Incremental Portion of the Final Plan (collectively, the "First Incremental Portion of the Final Plan") . Subsequent submittals of an Incremental Portion of the Final Plan shall be -3- considered only for off-site road improvements and off-site utility improvements and must be capable of being reviewed on an independent basis and cannot be dependent on future Incremental Portions of the Final Plan which are not yet submitted to the City for review. Further, any subsequent submittal of an Incremental Portion of the Final Plan must be consistent with all prior incremental submittals, as approved by the City. (B) Subject to the terms and conditions set forth in this Agreement, the City hereby agrees to issue to the Developer any applicable development permits reasonably necessary to commence development on the Property in accordance with an approved Incremental Portion of the Final Plan. Section 3. Procedures for Processing Incremental Portions of the Final Plan. (A) Applications for approval of an Incremental Portion of the Final Plan shall be submitted to the City by the Developer and reviewed and processed by the City in the same manner as a Final Subdivision Plan and/or Final Site Plan, as the case may be, would be reviewed and processed under the LDC. This requires review and approval by the Development Review Committee and by the Planning and Zoning Commission and the City Commission, respectively, on their agendas. Each Incremental Portion of the Final Plan shall conform substantially to the applicable portion of the Preliminary Subdivision Plan and the Preliminary Site Plan and shall also conform to all requirements set forth in the LDC and other adopted City regulations, as well as all applicable requirements of the Development Order, the Lake Lotta Mall PUD Land Use Plan, Development Agreement, the rules and regulations of all other applicable governmental jurisdictions and all permits issued for the Property. Each Incremental Portion of the Final Plan shall also conform substantially to and be consistent with any previously approved Incremental Portion of the Final Plan. If the Final Mall Plan or a subsequent application or submittal for approval of an Incremental Portion of the Final Plan deviates or changes any portion of a previously approved Incremental Portion of the Final Plan, then in such event such deviation or change shall be specifically delineated and identified on a separate submittal sheet with such subsequent application or submittal. Any approved Incremental Portion of the Final Plan shall be automatically voided if ,-construction has not commenced with respect to the approved portion within one (1) year from the date of approval of such Incremental Portion of the Final Plan. Further, the Developer shall obtain approval, of the Final Mall Plan within one (1) year from the date of approval of the First Incremental Portion of the Final Plan. (B) Each application or submittal by the Developer for approval of an Incremental Portion of the Final Plan shall include but not be limited to the following: -4- i) All information required by the LDC in connection with such application. ii) All information required by the Development Order, the Development Agreement, the Preliminary Subdivision Plan and the Preliminary Site Plan in connection with such application. iii) With respect to the Final Subdivision Plan, a cover sheet which identifies the submittal as "A Portion of Final Subdivision Plan for Lake Lotta Mall PUD". iv) With respect to the Final Site Plan, a cover sheet which identifies the submittal as "A Portion of Final Site Plan for Proposed Lots of the Lake Lotta Mall PUD". The blank spaces should i a ate the specific lots (or other identifying information) for which Final Site Plan approval is being sought. v) A copy of all permits issued by other governmental entities in connection with the Property, unless provided to the City with a prior application for approval of an Incremental Portion of the Final Plan. vi) All drawings submitted with an application shall consist of thirteen (13) signed and sealed blueline prints of each plan sheet. In addition to the blueline prints, the drawings will be submitted in AutoCad Release 12 *.DWG format on either of the following media types: (a) 3-1/2 high density (1.44 mg) (only if all drawing files will fit on no more than five diskettes in non-compressed format) ; or (b) Colorado DT-250 tapes or equivalent tapes which use QIC-80 format. Tapes must be formatted using Colorado Backup software. vii) Such other information as may be required by the City. viii) Notwithstanding subsections iv and v above, the cover sheet for the Clearing, Grubbing, Erosion Control and Mass Grading Plan shall be labeled "Clearing, Grubbing, Erosion Control and Mass Grading Plans - A Portion of Final Subdivision/Site Plan for Lake Lotta Mall P.U.D. " . -5- Section 4. Restrictions on Issuance of Development Permits. (A) No development permit will be issued by the City until all applicable fees payable in connection with such permit have been paid to the City; provided, however, that the issuance of development permits prior to approval of the Final Mall Plan shall not be construed to trigger any requirements for the payment of impact fees to the City. (B) No development permit other than those permits associated with activities to be undertaken pursuant to the Clearing, Grubbing, Erosion Control and Mass Grading Plans will be issued by the City prior to the commencement of construction of a brick wall as set forth in Condition of Approval No. 4 of the Lake Lotta Mall PUD Land Use Plan. Thereafter, only development permits associated with the specific approved Incremental Portion of the Final Plan will be issued prior to approval of the complete Final Mall Plan. (C) Except as set forth in Section 4 (B) above, no development permits, including but not limited to building permits for any on-site paving or for construction of any buildings or portions thereof (or the pouring of footers in connection therewith) , will be issued by the City until the Developer has obtained approval of a complete Final Mall Plan and has complied with all other requirements for the issuance of a building permit, including but not limited to those requirement set forth in the Ocoee City Code, the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement and this Agreement, and has paid all applicable impact fees and other fees due to the City. (D) Approval by the City of the Preliminary Site Plan and the Clearing, Grubbing, Erosion Control and Mass Grading Plans shall not be construed to require that the City approve a Final Site Plan for all of the Property. The Developer acknowledges and agrees that a Preliminary. Site Plan and a Final Site Plan must be submitted for each lot proposed for development within the Lake Lotta Mall PUD. Approval by the City of any Final Site Plan and the issuance of development permits pursuant thereto shall be subject to compliance with all applicable provisions of the LDC, the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Dev,elopment Agreement and the Preliminary Site Plan. Section 5. Pre-Construction Conference. (A) A pre-construction conference shall be held between the Developer and the City prior to the commencement of any development activities on the Property pursuant to each development permit issued based upon an approved Incremental Portion of a Final Plan; provided, however, that a pre-construction conference may relate to more than one development permit associated with an -6- approved Incremental Portion of a Final Plan. With respect to any such development activities, no construction equipment will be permitted on the Property until after the pre-construction conference. (B) Notwithstanding any provision contained herein to the contrary, no pre-construction conference shall be held and no development permit shall be issued by the City until such time as the following have occurred: (1) The Developer shall have complied with the provisions of Part II(B) (3) of the Development Order and Condition of Approval No. 23 of the Lake Lotta Mall PUD Land Use Plan related to Gopher Tortoise Protection. (2) A plan and time schedule for the erection of a temporary opaque fence along the eastern edge of Parcel 5 (Basin 1) shall have been submitted and approved by the City. (3) A tree preservation plan shall have been submitted to and approved by the City. (4) The Developer shall have complied with the provisions of Section 6-10(B) (3) of the LDC related to tree protection. To the extent feasible, compliance with the above conditions may occur as part of the approval of the First Incremental Portion of the Final Plan. Section 6. Conditional Approval: Indemnity. (A) Approval by the City of each submittal for an Incremental Portion of the Final Plan and issuance of development permits in connection therewith shall for all purposes be a conditional approval and conditional development permits, respectively, which is subject to revision by the City based upon information disclosed in any subsequent incremental or final submittal or ascertained by the City in connection with its review of such subsequent incremental or final submittal or otherwise discovered by the City. The Developer acknowledges and agrees that it is proceeding at its own risk and expense in seeking approvals for an Incremental Portion of the Final Plan and commencing development pursuant to development permits issued based on an approved Incremental Portion of the Final Plan. (B) The Developer shall not be entitled to claim any vested rights or detrimental reliance based upon actions taken by the Developer in reliance on approval of an Incremental Portion of the Final Plan or any development permits issued in connection -7- therewith. The Developer expressly acknowledges and agrees that the City may require revisions to an approved Incremental Portion of the Final Plan in connection with its review of any subsequent incremental or final submittal and that such action by the City could cause the Developer significant expense in order to comply with any revised approvals, including but not limited to the redesign of a previously approved Incremental Portion of the Plan, and the retrofitting, reconstruction or reinstallation of improvements constructed by the Developer based upon a prior approved Incremental Portion of the Final Plan. (C) Approval of an Incremental Portion of the Final Plan does not constitute approval of the Final Mall Plan for purposes of the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan and the Preliminary Site Plan. The Developer shall be required to obtain approval of the Final Mall Plan in accordance with the LDC and such approval shall include and incorporate all prior approvals of an Incremental Portion of the Final Plan, except to the extent modified by the City. In connection with the approval of the Final Mall Plan, the Developer shall comply with all provisions of the LDC, the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan, and the Preliminary Site Plan which are to be complied with prior to or at the time of approval of the Final Mall Plan. (D) Any development undertaken on the Property pursuant to a Clearing and Grubbing Permit issued by the City shall be deemed to be the commencement of site development for purposes of Condition of Approval No. 4 of the Lake Lotta Mall PUD Land Use Plan. (E) The Developer hereby agrees to indemnify and hold the City harmless from any and all damages, costs, expenses, suits, claims, fines, penalties and liabilities, including but not limited to attorney's fees and paralegal fees and costs, whether at the trial or appellate level, without regard to whether any legal or administrative proceedings are commenced or whether or not such action is prosecuted to judgment or a final determination, arising out of or related to this Agreement, any approvals granted or denied by the City pursuant to this Agreement, and any development permits issued by the City based on approvals of an Incremental Portion of the Final Plan. Section 7. Mall Building Permit. Any development permit issued by the City based on approval of an Incremental Portion of the Final Plan shall not in any way be construed as a "building permit for a mall of at least 800,000 gross square feet" as such term is used in the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan and the Preliminary -8- Site Plan. Notwithstanding any provision contained herein to the contrary, no building permit for a mall of at least 800, 000 gross square feet shall be issued by the City until (a) the complete Final Mall Plan has been approved the City, (b) all applicable fees and charges in connection therewith have been paid, (c) all conditions precedent set forth in the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan and the Preliminary Site Plan have been satisfied, and (d) a pre-construction conference has been held between the City and the Developer based on such complete Final Mall Plan. Section 8. Conflicts with Other Documents. In the event of any conflict between the provisions of this Agreement and the provision of the Development Order, the Lake Lotta Mall PUD Land Use Plan and the Development Agreement, it is agreed that the provisions of the Development Order, the Lake Lotta Mall PUD Land Use Plan and the Development Agreement shall control. Section 9. 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 person hereinafter designated, or (ii) when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed to the person at the mailing address set forth on the first page of this Agreement, or such other address or to such other person as the party shall have specified by written notice to the other party delivered in accordance herewith. Section 10. 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 11. Recordation of Agreement. At the option of the City, this Agreement may be recorded, at the Developer's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Developer, execute and deliver letters affirming the status of this Agreement. Section 12._ Incorporation of Agreement into Incremental Portions of the Final Plan. This Agreement shall be incorporated by reference into and made a part of each Incremental Portion of the Final Plan approved by the City. Section 13. Applicable Law. This Agreement and the provisions contained herein shall be construed, controlled and interpreted according to the laws of the State of Florida. -9- Section 14. 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 15. 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; provided, however, that nothing contained herein shall be deemed to supersede or amend any provisions of the Development Order, the Lake Lotta Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan, or the Preliminary Site Plan. Amendments to and waivers of the provisions of this Agreement shall be made by the parties only in writing by formal amendment. Section 16. 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 17. 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, 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 18. 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 19. 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 20. 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 21. Effective Date. The Effective Date of this Agreement shall be the date that Ordinance No. 95-02 becomes -10- effective pursuant to the provisions of Section Ten thereof. This Agreement shall be of no force or effect prior to the Effective Date hereof. IN WITNESS WHEREOF, the Developer, and the City have caused this instrument to be executed by their duly authorized officers as of the day and year first above written. DEVELOPER: Signed, sealed and delivered HOMART DEVELOPMENT CO. , in the presence of: a Delaware corporation By: JOHN F. OLIARO Print Name: First Vice-President (CORPORATE SEAL) Print Name: CITY: Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA By: S. Scott Vandergrift, Mayor Print Name: Attest: •Jean Grafton, City Clerk Print Name: (SEAL) 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 , 1995 legality this day of UNDER AGENDA ITEM NO. , 1995. FOLEY & LARDNER By: City Attorney -11- 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 JOHN F. OLIARO, as First Vice President of HOMART DEVELOPMENT CO. , a Delaware corporation, and who [ ] is personally known to me or [ ] produced as identification, and that he acknowledged executing the same in the presence of two subscribing witnesses, on behalf of said corporation, 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 March, 1995. 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): 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 VANDERGRIFT and JEAN GRAFTON, 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 March, 1995. 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): A:\FINALPLN.NEW 13/15/95'NIGHT TRANSFER DISK I PER:jed -12- EXHIBIT "A" BEING ALL THAT TRACT OF LAND LYING AND BEING PARTS OF SECTION 21, TOWNSHIP 22 SOUTH, RANGE 28 EAST, ORANGE COUNTY, FLORIDA AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCE AT THE EAST QUARTER CORNER OF SECTION 21, TOWNSHIP 22 SOUTH, RANGE 28 EAST; THENCE S 89°42'47" W, A DISTANCE OF 1336.77 FEET TO A POINT BEING THE N.E. CORNER OF THE N.W. QUARTER OF THE S.E. QUARTER OF SAID SECTION 21 AND BEING THE POINT OF BEGINNING; THENCE S 0°14'27" W, ALONG THE EAST LINE OF THE N.W. QUARTER OF THE S.E. QUARTER OF SAID SECTION 21, A DISTANCE OF 1325.27 FEET; THENCE N 89°32'59" E ALONG THE NORTH LINE OF TRACT 15, ORLANDO GROVES ASSOCIATION, LAKE LOTTA GROVES, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK E, PAGE 52, PUBLIC RECORDS, ORANGE COUNTY, FLORIDA, A DISTANCE OF 90.63 FEET; THENCE S 0°14'27" W, A DISTANCE OF 944.21 FEET; THENCE S 89°26'02" W ALONG THE SOUTH LINE OF LOT 3, BLOCK A, SAID PLAT, A DISTANCE OF 180.83 FEET; THENCE S 19°55'46" W ALONG THE WEST LINE OF LOTS 4 THROUGH 7, BLOCK A, SAID PLAT, A DISTANCE OF 343.13 FEET TO ITS INTERSECTION WITH THE NORTH RIGHT OF WAY OF STATE ROAD 50, HAVING A 150 FOOT RIGHT.OF WAY; THENCE ALONG THE NORTH RIGHT OF WAY OF STATE ROAD 50 AT A BEARING OF S 89°48'09" W, A DISTANCE OF 1106.89 FEET; THENCE N 0°02'25" E ALONG THE WEST LINE OF TRACT 6, SAID PLAT AND ITS NORTHERLY PROLONGATION, A DISTANCE OF 611.73 FEET, LEAVING THE NORTH RIGHT OF WAY OF STATE ROAD 50; THENCE S 89°48'24" W ALONG THE SOUTH LINE OF TRACTS 11 AND 12, SAID PLAT, AND ITS EASTERLY PROLONGATION, A DISTANCE OF 678.03 FEET; THENCE N 0°03'23" W ALONG THE WEST LINE OF TRACT 11, SAID PLAT, A DISTANCE OF 649.15 FEET; THENCE S 89°46'31" W ALONG THE SOUTH LINE OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER, SECTION 21, A DISTANCE OF 303.32 FEET INTERSECTING THE EAST RIGHT OF WAY OF CLARKE ROAD HAVING A 100 FOOT RIGHT OF WAY TO A POINT ON A NON-TANGENT CURVE, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 1191.00 FEET AND A CENTRAL ANGLE OF 19°33'36"; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT, A DISTANCE OF 406.59 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS N 13°20'24" E, A DISTANCE OF 404.62 FEET TO THE END OF THE CURVE; THENCE ALONG SAID RIGHT OF WAY S 66°52'48" E, A DISTANCE OF 20.00 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 1171.00 FEET AND A CENTRAL ANGLE OF 0°55'24"; THENCE NORTHERLY ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE TO THE RIGHT, A DISTANCE OF 18.87 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS N 23°34'54" E, A DISTANCE OF 18.87 FEET TO THE END OF CURVE; THENCE ALONG THE EASTERLY RIGHT OF WAY OF CLARKE ROAD N 65°57'24" W, A DISTANCE OF 20.00 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 1191.00 FEET AND A (Page 1 of 2) CENTRAL ANGLE OF 17°29'14"; THENCE NORTHERLY ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE TO THE RIGHT, A DISTANCE OF 363.50 FEET SAID ARC SUBTENDED BY A CHORD WHICH BEARS N 32°47'13" E, A DISTANCE OF 362.10 FEET TO THE END OF THE CURVE; THENCE REMAINING ALONG THE EASTERLY RIGHT OF WAY OF CLARKE ROAD N 41°31'50" E, A DISTANCE OF 501.23 FEET; THENCE S 48°28'10" E, A DISTANCE OF 20.00 FEET ALONG SAID RIGHT OF WAY; THENCE ALONG THE RIGHT OF WAY OF CLARKE ROAD, N 41°31'50" E, A DISTANCE OF 20.00 FEET; THENCE N 48°28'10" W ALONG SAID RIGHT OF WAY, A DISTANCE OF 20.00 FEET; THENCE ALONG RIGHT OF WAY OF CLARKE ROAD N 41°31'50" E, A DISTANCE OF 70.59 FEET TO THE BEGINNING OF A CURVE, CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 1291.00 FEET AND A CENTRAL ANGLE OF 41°20'59"; THENCE NORTHERLY ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE TO THE LEFT, A DISTANCE OF 931.70 FEET, SAID ARC SUBTENDED BY A CHORD WHICH BEARS N 20°51'21" E, A DISTANCE OF 911.61 FEET TO THE END OF THE CURVE; THENCE ALONG THE EAST RIGHT OF WAY OF CLARKE ROAD N 0°10'51" E, A DISTANCE OF 208.91 FEET; THENCE S 89°49'09" E, A.DISTANCE OF 955.13 FEET, LEAVING THE EAST RIGHT OF WAY OF CLARKE ROAD; THENCE S 0°04'18" E ALONG THE EAST LINE OF THE WEST 3/4 OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER, SECTION 21, A DISTANCE OF 878.68 FEET; THENCE N 89°42'47" E, ALONG THE NORTH LINE OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER, SECTION 21 A DISTANCE OF 334.19 FEET TO THE POINT OF BEGINNING. CONTAINS 130.004 ACRES, MORE OR LESS. (Page 2 of 2)