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HomeMy WebLinkAboutVI (A2) West Oaks Mall PUD (f/k/a) Revised Processing Agreement AGENDA 7-18-95 ITem VI A 2 FOLEY & LARDNER III NORTH ORANGE AVENUE, SUITE 1800 ORLANDO, FLORIDA 32801 TELEPHONE 14071 423-7656 FACSIMILE 14071 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, City Attorneyi DATE: July 12 , 1995 RE: Revised West Oaks Mall PUD (f/k/a Lake Lotta Mall PUD) Final Subdivision Plan/Final Site Plan Processing Agreement At your meeting of March 21, 1995 the City Commission approved a Final Subdivision Plan/Final Site Plan Processing Agreement (the "Current Agreement") . Pursuant to the Current Agreement, the City Commission has approved the Clearing, Grubbing, Erosion Control and Mass Grading Plans for the West Oaks Mall. Homart has now proposed that the Agreement may be amended in order to allow for the approval of certain additional plans and the issuance of building permits prior to approval of the Final Subdivision Plan and the Final Site Plan for the mall. This approach and timetable was not contemplated at the time the City Commission approved the Current Agreement, but is now needed to allow the mall to stay on schedule for a Fall 1996 opening. The City staff has reviewed Homart's request and concluded that, with appropriate safeguards, it is in the best interest of the City to allow the Final Plans to be processed on an incremental basis and for foundation and building permits to be issued prior to approval of the Final Mall Plan. Homart has agreed to prepay over $4 , 000, 000 in building and impact fees in connection with the revised agreement. This will allow the city to expedite the schedule for the White Road improvements and help assure that the project goes on the tax rolls on January 1, 1997 . Accordingly, enclosed is a proposed Revised West Oaks Mall PUD (f/k/a Lake Lotta Mall PUD) Final Subdivision Plan/Final Site Plan Processing Agreement (the "Revised Processing Agreement") . Changes from the Current Agreement are blacklined or otherwise indicated. A clean The Honorable Mayor and City Commissioners of The City of Ocoee July 12, 1995 Page 2 copy will be executed by Homart Development Co. prior to the City Commission meeting. The following highlights the differences between the Current Agreement and the Revised Processing Agreement: 1. Broader authority is granted for the issuance of development permits, including foundation and building permits, prior to approval of the Final Mall Plan. Certain restrictions on the issuance on building permits are deleted. 2 . Homart is required to pre-pay certain impact, building and plan review fees at the time of issuance of a foundation permit. Additionally, right-of-way donations and cash contributions related to White Road are required at the time of issuance of the foundation permit rather than at the time of the building permit. It is anticipated that the foundation permit will be issued on July 20, 1995. 3 . Restrictions are imposed with respect to the issuance of both Certificates of Completion and Certificates of Occupancy. The Final Mall Plan must be approved and all permits obtained prior to the issuance of the Certificate of Completion. Also, the Final Mall Plan must be approved, a Certificate of Completion issued and the subject property platted prior to issuance of any Certificate of Occupancy. 4 . Certain conditions precedent to platting are set forth in the Revised Processing Agreement. 5. Dry permits for certain water and wastewater improvements will be issued by the City prior to Homart having in place DEP water and wastewater permits. No connection to the City system will be permitted until DEP permits are obtained. 6. The Revised Processing Agreement will be referenced in all development permits issued by the City and all such development permits will be subject to the terms, conditions, and limitations set forth in the Revised Processing Agreement. 7. Homart (and any permittees) is proceeding at its own risk. All approvals and permits are conditional The Honorable Mayor and City Commissioners of The City of Ocoee July 12, 1995 Page 3 approvals and conditional permits. The City may require that improvements be retrofitted, reconstructed or reinstalled if subsequent submittals result in a change to a previously approved incremental plan or a previously issued development permit. 8. The Current Agreement is rescinded in its entirety. The proposed Revised Processing Agreement has been agreed to by Homart and is recommended for approval by the City Staff. RECOMMENDATION: It respectfully is recommended that the City Commission approve the Revised West Oaks Mall PUD (f/k/a Lake Lotta Mall PUD) Final Subdivision Plan/Final Site Plan Processing Agreement between the City and Homart Development Co. and authorize execution thereof by the Mayor and City Clerk. Enc. cc: Mr. Ellis Shapiro, City Manager C:\WP51\DOCS\OCOE\MEMOS\PERDDH07.11117/12/951 DEBBIEH I PER:dh REVISED WEST OAKS MALL PUD F R A LAKE LOTTA MALL PUD . FINAL SUBDIVISION PLAN/ FINAL SITE PLAN PROCESSING AGREEMENT THIS REVISED WEST OAKS MALL PUD (F/K/A LAKE LOTTA MALL PUDL FINAL SUBDIVISION PLAN/FINAL SITE PLAN PROCESSING AGREEMENT (this "Agreement") is made and entered into as of the day of March July, 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 West Oaks Mall PUD ,(f/k/a Lake Lotta Mall PUDI as approved by the Ocoee City Commission on January 26, 1995 by the adoption of Ordinance No. 95-02 ("thc Lake Lottad. as amended pa Ordinance No. 95-19 adopted on July 18. 1995 ilthl West Oaks Mall PUD") ; and WHEREAS, on January 26, 1995 the Ocoee City Commission approved the following in connection with the Lakc Lotta West Oaks Mall PUD: (1) that certain Development Order for the Lake Lotta Mall Development of Regional Impact as adopted on January 26,. 1995 ("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 Lakc Lotta as amended by prdinance No. 95-19 "( the West Oaks Mall PUD Land Use Plan") ; (3) that certain Development Agreement (Lake Lotta Mall PUD) dated January 26 1995 between the Developer, Lake Lotta, Ltd. , and the City as amended by First Amendment thereto dated July 18 1995 ("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 Lakc Lotta West Oaks Mall PUD and issue incremental or phased approvals for the Lakc Lotta West Oaks 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 Lakc Lotta West Oaks 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 Lakc Lotta West Oaks 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 -2- 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 Developer; and WHEREAS, the City is willing to process a Final Plan for the Lakc Lotta West Oaks Mall PUD on an incremental or phased review and approval basis, subject to the terms ads conditions and limitations hereinafter set forth; and WHEN the Developer has also requested that the aily fast track the process for issuance of development permits issuing development permits prior to approval of the Final Mall Plan, the issuance of a Certificate of Completion and the platting of the Property; and WHEREAS, the City Attorney has advised the City that it may issue development permits prior to approval of the Final Mall Plan, the issuance of a Certificate of Completion and the platting f the Property subject to the execution of a rocessin agreement between the City and the Developer; and WHEREAS, the City is willing to issue development permits, prior to approval, of the Final Mall Plan, the issuance of a Certificate of Completion and the platting of the Property, subject to the terms, conditions and limitations hereinafter set forth; and WHEREAS, all references in this Agreement to "development permits" shall be as defined in Section 2-2 (86), of the LDC and shall include but not be limited to clearing and grubbing, wall, underground storm ,sewer, foundation, underground utility, pa_ wing. curb and gutter, storm sewer, and building permits; and WHEREAS, an incremental or phased review and approval of a Final Plan for the Lake Lotta Mall PUD West Oaks Mall PUD and the issuance of development permits prior to approval of the Final Mall Plan, the issuance of a Certificate of Completion, and the platting of the Property 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 Tmake Lotta West Oaks Mall PUD to be processed on an incremental or phased basis and to issue development permits prior to approval of the Final Mall Plans the issuance of a Certificate. of Completion and the platting f the Property. NOW, THEREFORE, in consideration of the premises and other good and valuable considerations exchanged between the -3- 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 an4a. conditions and limitations 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 Plans for the Lakc Lotta West Oaks Mall PUD. For the purposes of this Agreement the complete Final Plan for the Lake Lotta West Oaks Mall PUD which meets all of the requirements of the LDC, the Development Order, the Lakc Lotta West Oaks 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 Lakc Lotta West Oaks 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 Lakc Lotta West Oaks 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 following: (i) 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 aubmittala of and ii the Pavin. and Utilities Landsca•e and Irri•ation and Si•nCriteria Plans as an Incremental Portion of the Final Plan chall be coniidercd only for off 3itc road improvements and off cite utility improvements and(collectively, the "Second Incremental Portion of the Final Plan") . Subsequent submittals of an Incremental Portion of the Final Plan 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 -4- Incremental Portion of the Final Plan must be consistent with all prior incremental submittals, as approved by the City. (B) Subject to the terms a14 conditions and limitations 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 Lakc Lotta West Oaks 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: i) All information required by the LDC in connection with such application. -5- 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 Lakc Lotta West Oaks 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 Lakc Lotta West Oaks Mall PUD" . The blank spaces should indicate 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. " . Section 4. Restrict-i-enen Procedures for Issuance of Development Pe term s. (A) Exce•t as ex•ressl set forth in this A•reement a• •lications for issuance of development permits shall be submitted to the Cit and reviewed and •rocessed b the Cit in accordance with the ordinances solicies and •rocedures of the Cit Each -6- a• •lication for a develo•ment •ermit shall be consistent with the a• •licable •ortion of the a• •roved Incremental Portion of the Final Plan. If the Final Mall Plan or an subse•uent a• •lication for a develo•ment •ermit deviates or chan•es an •ortion of a •reviousl a• •roved Incremental Portion of the Final Plan then in such event the Cit ma modif a •reviousl issued develo•ment •ermit and the permit holder shall comply with any such modifications. (B) 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 the clearin• and •rubbin• •ermit wall •ermit and under•round storm sewer •ermit •ursuant to the a• •roval of the First Incremental Portion of the Final Plan shall not be construed to trigger any requirements for the payment of impact fees to the City. -03*1-.9.1 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 West Oaks 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 thcrcof (or the pouring of footers in connection therewith) , will 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 Codc, the Development Order, the Lake Lotta Mall PUD Land Usc 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 West Oaks 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 West Oaks Mall PUD Land Use Plan, the Development Agreement ani the Preliminary Site Plan and this A•reement. -7- 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 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 (8) (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. Restrictions of Issuance of Certificates of Completion and Certificates of Occupancy,. A No Certificate of Com•letion shall be issued b the City for any portion of the Property until the Developer and, if a• •licable the 'emit holder has i obtained a• •roval of a com•lete Final Mall Plan• ii has com•lied with all a• •licable --- - - ---- provisions of the LDC related to issuance of a Certificate of Com•letion includin• but not limited to the re•uirements of Section 4-5 J of the LDC iii has obtained all re•uired Florida De•artment of Environmental Protection water and wastewater -8- permits; (iv) has obtained all required Florida Department of Trans•ortation •ermits• v com•leted all on-site and off-site public and private improvements as required by the Final Mall Plan; and (vi) has complied with all applicable provisions of the Ocoee Cit Code the Develo•ment Order the West Oaks Mall PUD Land Use Plan the Develo•ment A•reement and this A•reement which are required to be complied with prior to issuance of a Certificate of Completion. CB) No Certificate of Occupancy shall be issued by the Cit for a structure constructed on the Pro•ert or an •ortion thereof until the Develo•er and if a• •licable the •ermit holder has i obtained a• •roval of a com•lete Final Mall Plan* ii ---- ----------- platted the Property in accordance with the requirements of the LDC includin• but not limited to Section 4-5 I of the LDC• iii obtained a Certificate of Com•letion as •rovided in Subsection A above; (iv) complied with all applicable provisions of the Ocoee Cit Code related to issuance of a Certificate of Occu•anc • and v has com•lied with all a• •licable •rovisions of the Develo•ment Order, including but not limited to the provisions of Part II (B) (13) requiring that certain intersection improvements be in place at the intersection of Hiawassee and SR 50 prior to issuance of the first certificate of occu•anc and vi has com•lied with all a• •licable •rovisions of the West Oaks Mall PUD Land Use Plan the Development A•reement and this A•reement which are re•uired to be complied with prior to issuance of a Certificate of Completion. Section 7. Platting Prior to Certificate of Completion. The Developer may plat the Property, oraportioU thereof, prior to issuance of a Certificate of Completion in accordance with the provisions of Section 4-5 (11(31_ of the LDC• provided, however, that prior to platting the Developer shall have i obtained a. .roval of a com•lete Final Mall Plan* ii obtained all a• •licable Florida De•artment of Environmental Protection Water and Wastewater permits; (iii) obtained all applicable Florida Department of Transportation permits; and (iv) complied with all a• •licable •rovisions of the Ocoee Cit Code the Develo•ment Order the West Oaks Mall PUD Land Use Plan the Develo•ment A•reement and this A•reement which are to be com•lied with •rior to the •lattin• of all or a •ortion of the Pro•ert . The Cit ma require that all of the Property be platted at the time of the first plat. Section 8. Foundation Permit: Prepaid Fees. (A) Notwithstanding any provision contained herein to the contrar no foundation •ermit shall be issued for an •ortion of the Pro•ert until all of the followin• have occurred to the satisfaction of the City: -9- (1) The City has approved the First Incremental Portion of the Final Plan and the Second Incremental Portion of the Final Plan. (2) Except as expressly set forth herein, the Developer and the applicant for the foundation permit have complied with all requirements of the Ocoee City Code for the issuance of a foundation permit . (3) The Developer has prepaid to the City the road, fire and police impact fees for the improvements proposed to be constructed on Lots 1, 2 , 3 , 4 and 5 of the West Oaks Mall PUD, as set forth in the Second Incremental Portion of the Final Plans . The City and the Developer agree that the aforementioned prepaid road impact fees shall be based on 996, 896 gross leasable square feet plus 13 , 762 gross leasable square feet of ancillary area, that the aforementioned fire and police impact fees shall be based on 1, 147, 814 •ross square feet, and that said impact fees shall be in accordance with the following schedule : (a) Road Impact Fees : $3 ,436, 965 . 00 (b) Fire Impact Fees : $361, 561 . 00 (c) Police Impact Fees : $111, 338 . 00 The above-referenced fees are herein collectively referred to as the "Prepared Impact Fees" . (4) The Developer has prepaid to the City the building permit fees and the plan review and inspection fees for the improvements proposed to be constructed on Lots 2 , 3 , 4 and 5 of the West Oaks Mall PUD as set forth in the Second Incremental Portion of the Final Plans . The City and the Developer agree that the aforementioned prepaid building permit fees shall be based on 887, 710 gross square feet and that the prepaid building permit fees shall be $154 , 516 . 00 ( "the Prepaid Building Permit Fees") and the prepaid Plans Review and Inspection Fees shall be $208, 000 . 00 _ ( "the Prepaid Plans Review Fees" ) . (5) The Developer has donated and conveyed to the City the Clarke Road Right-of-Way Conveyances -10- in accordance with the provisions of Part II (C) (1) of the Development Order. 6 The Develo•er has donated to the Cit the sum of $250, 000. 00 in accordance with the provisions of Part II (C) (3) of the Development Order related to White Road. 7 The Cit shall have received the sum of $250, 000.00 as rectuired by the provisions of Part II (C) (3) (a) of the Development Order for the Lake Lotta Center DRI. 8 The Develo•er and if a• •licable the a• •licant for the foundation •ermit have com•lied with all re•uirements of the Develo•ment Order the West Oaks Mall PUD Land Use Plan, the Development A•reement and this Agreement which are required to be completed prior to the issuance of a building permit for a mall on the Pro•ert of at least 800 000 gross square feet. 9 All monies re•uired to be •aid to the Cit pursuant to this subsection shall have been received b the Cit and the Cit 's bank shall have confirmed that such funds have been collected. The Develo•er a•rees to forward all payments by wire transfer in accordance with the instructions of the City. B The Cit and the Develoser hereb a•ree as follows with resect to the Pre•aid Im•act Fees Pre•aid Buildin. Permit Fees and Pre•aid Plans Review Fees collectivel the "Pre•aid Fees") : (1) The Prepaid Fees are non-refundable. The Cit shall not be required to escrow any of the Prepaid Fees. (2) The Prepaid Fees are based upon a good faith estimate by the City and the Developer. Nothing contained herein shall be construed to relieve the Developer, the Property owner the applicant or the permittee from paying all a• •licable fees due to the Cit at the time of issuance of any development permit. 3 U•on written re•uest of the Develo•er the Pre•aid Fees will be credited a•ainst the applicable road, fire and police impact fees the building permit fees and the plans review -11- and inspection fees due at the time of issuance of a buildin. •ermit for an •ortion of the Pro•ert . If the a• •licant for a building permit is a person or entit other than the Developer, then such applicant must present to the City a formal assignment of the Pre•aid Fees or a •ortion thereof in a form acce•table to the City; otherwise such applicant shall not be entitled to utilize the Pre•aid Fees. Nothin• contained herei shall be construed to prevent the Developer from obtainin• reimbursement of the Pre•aid Fees or a •ortion thereof from an such a• •licant for a building permit as a condition precedent to the assignment of any Prepaid Fees. 4 The Pre•aid Fees do not include an of the fees a• •licable to the interior buildout of the structures to be constructed on the Property., 5 The •re•aid road im•act fees ma onl be used to pay road impact fees. The prepaid fire im•act fees ma onl be used to •a fire impact fees. The prepaid police impact fees may only be used to pay police impact fees. The prepaid building permit fees may only be used to pay building permit fees. The prepaid plans review and inspection fees may only be used to •a the •lans review and inspection ------ ---- — -------- ------------------ -- ---------- fees. Section 9. DEP Permits' Restrictions on Develovment Permits for Off-site Improvements Prior to issuance of the Florida Department of Environmental Protection water and wastewater permits for the Pro•ert and confirmation b the Cit that such •ermits are consistent with the Incremental Portions of the Final Plan ever develo•ment •ermit issued b the Cit shall contain the followin• special conditions: "Department of Environmental Protection water and wastewater •ermits have not been issued for the Property. No connection to the City of Ocoee sewer and water system will be permitted until such permits are issued and the City confirms that such permits are consistent with all prior City approvals. " -12- Additionall the Under•round Utilit Permit to be issued b the City shall expressly state that it is a "DRY PERMIT". Section 6 10. 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 pursuant to the provisions of this Agreement shall for all purposes be a conditional approval and conditional development permits, respectively, which 4e are subject to revision by the City based upon information 44 disclosed in any subsequent incremental or final submittal or alil 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 agrcc3 that it--ie-proceed fig .at its or (iii) disclosed by any permit subsequently issued with respect to the Pro•ert . The Develo•er and the holder of an develo•ment permit issued for the Property acknowledge and agree that they are proceeding at their own risk and expense in seeking approvals for an Incremental Portion of the Final Plan, obtaining development permits and commencing development pursuant to development permits issued pursuant_ to the provisions of this Agreement. (B) The Developer and any subsequent owner of the Property or any portion thereof 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 therewith. The Developer pursuant to the provisions of this A•reement. The Develo•er on behalf of itself and an subse•uent owner of the Property or any portion thereof 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 and a subsequent owner 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 Lotter West Oaks 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 -13- Mall Plan, the Developer shall comply with all provisions of the LDC, the Development Order, the Lake Lotta West Oaks Mall PUD Land Use Plan, the Development Agreement, the Preliminary Subdivision Plan, and the Preliminary Site Plan and this Agreement. 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 West Oaks Mall PUD Land Use Plan. (E) The Developer hereby agrees to indemnify indemnifies and held holds 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 - _ _ _ - - - • _ _ ' - Plan. pursuant to the provisions of this Agreement. Section 11. Mall Building Permit. Notwithstanding any provision contained herein to the contrary, no building permit will be issued for an •ortion of the Pro•ert until after a foundation permit has been issued in accordance with the provisions of this Agreement. 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 Site Plan. _ • oquare feet ohall be iaaucd by the City until (a) the complete and ohargcs in connection thcrcwith have been paid, (o) all Section &-12. 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 West Oaks Mall PUD Land Use Plan and the Development Agreement, it is agreed -14- that the provisions of the Development Order, the Lakc Lotta West Oaks Mall PUD Land Use Plan and the Development Agreement shall control. Section 0-6- 13. 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 4.0 14. Covenant Running with the Land. This Agreement shall run with the Property and inure to and be for the benefit of and being binding on 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 or who may be issued a development permit for all or any portion of the Propert . Section 3I 15. 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 ice- 16. Incorporation of Agreement into Incremental Portions of the Final Plan-,- and Development Permits. (A) This Agreement shall be incorporated by reference into and made a part of each lit Incremental Portion of the Final Plan approved by the City, and (ii) each development permit_issued by the City with respect to the Property, or any portion thereof, •rior to the •lattin• of the Pro•ert and issuance of a Certificate of Com•letion in accordance with the •rovisions of the LDC and this Agreement. B Each develo•ment •ermit issued b the Cit with resect to the Pro•ert or an •ortion thereof •rior to the •lattin• of the Pro•ert and issuance of a Certificate of Completion shall contain the following special _condition: "This (Name of Permit) Permit is subiect to the terms, conditions and limitations set forth in that certain Revised West Oaks Mall PUD (f/k/a Lake Lotta Mall PUD) Final Subdivision Plan/Final Site Plan Processing Agreement dated July 18, 1995 between the City of Ocoee and Homart -15- Development Co. , as it may from time-to- time be amended in the future. Commencement of any activities pursuant to this Permit shall be deemed to evidence the acceptance of the aforementioned Processing Agreement b the permit holder and agreement to be bound b the terms conditions and limitations thereof. " The above-referenced S•ecial Condition shall not a• •1 to development •ermits issued subse•uent to the •lattin• of the Pro•ert and the issuance of a Certificate of Com•letion in accordance with the provisions of this Agreement. Section 13 17. 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 14 18. 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 IS: 19. 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 Lakc Lotta West Oaks 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 14 20. 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 1* 21. 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. -16- Section 48- - 22. 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-- 23. 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. Sections 24. 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 2-1 25. Effective Date. The Effective Date of this Agreement shall be the date that Ordinance No. 95 02 bccomca _ - = it is last executed by a party hereto. Section Tcn thereof. This 26. Reseal of Prior A•reement. This A•reement ex•ressl su•ersedes and reseals that certain Lake Lotta Mall PUD Final Subdivision Plan/Final Site Plan Processin. A•reement dated March 28 1995 between the Cit and the Develo•er ,("the Original Processing Agreement") . - All references in any Incremental Portion of the Final Plan or an develo•ment •ermit to ------ - - -- --- --------- -- --- - --- - ----- the Original Original Processing Agreement shall be of no forcc or effect prior to the Effective Datc hereof deemed to refer to this Agreement as it ma from time-to-time be amended . -17- 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 -18- 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 Marek , 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:\EINALPLN.RED17/12/951NIGHI' TRANSFER DISKIPER:jed -19- • EXHIBIT "A" BEING ALL THAT TRACT OF LAND LYING AND BEING PARTS OF TOWNSHIP 22 SOUTH, RANGE 28 EAST, ORANGE COUNT SECAION 2O PARTICULARLY DESCRIBED AS FOLLOWS: 1', FLORIDA AND MORE COMMENCE AT THE EAST QUARTER CORNER OF SECTION 21, TO SOUTH, RANGE 28 EAST; THENCE S 89°42'47" W, A DISTANCOF SHIP 22 E TO A POINT BEING THE N.E. CORNER OF THE N.W. 1336.77.FEET QUARTER OF SAID SECTION 21 AND BEING THE POINTQUARTER BE OFIN THE S.E. S 0°14'27" W, ALONG THE EAST LINE OF THE N.W. OF BEGINNING; THENCE QUARTER OF SAID SECTION 21 A DISTANCE OF 1325.27 FEET; THE S.E. 89°32'59" E ALONG THE NORTH LINE OF TRACT 15, O HNS N ASSOCIATION, LAKE LOTTA GROVES, ACCORDINTO GROVESH RECORDED IN PLAT BOOK E, PAGE 52, THE PST THEREOF, AS FLORIDA, A DISTANCE OF 90.63 FEET; THENCE RECORDS,0°°1142IS'ORANGE COUNTY, 944.21 FEET; THENCE S 89°26'02' W ALONG THE SOUTH LIE O DISTANCE OF A, SAID PLAT, A DISTANCE OF'180.83 FEET; THENCE S 19°55'46'OF LOT 3, BLOCK WEST LINE OF LOTS 4 THROUGH 7, BLOCK A, SAID 6 W ALONG THE FEET TO ITS INTERSECTION WITH THE NORTH RIGHT OF WAY OF 343.13 50, HAVING A 150 FOOT RIGHT OF WAY; THENCE ALONG Y OF STATE ROAD WAY OF STATE ROAD 50 AT A BEARING OF S 89°48'09' W 1106.89 FEET•. 0°02'25" �THE:NORTH RIGHT OF . THENCE N 00225 E ALONG THE A DISTANCE OF PLAT AND ITS NORTHERLY PROLONGATION, A DISTANCE E OF TRACT 6, SAID LEAVING THE NORTH RIGHT OF WAY OF STATE ROAD 50; THENCE FEET, W ALONG THE SOUTH LINE OF TRACTS 11 AND 12, SAID PLAT NCE S 8S°48'24" EASTERLY PROLONGATION, A DISTANCE OF 678.03 FEET; THEN E ALONG THE WEST LINE OF TRACT 11, SAID PLAT, A DISTANCE F N 0°03' E ;W THENCE S 89°46'31" W ALONG THE SOUTH LINE OF THE NORTHEASTF U FEET; OF THE SOUTHWEST QUARTER, SECTION 21, A DISTANCE QUARTER INTERSECTING THE EAST RIGHT.OF WAY OF CLARKE AOF HAVING FEET FOOT RIGHT OF WAY TO A.POINT ON A NON-TANGENT CURVE NA 1 E .SOUTHEASTERLY, HAVING:A RADIUS OF 1191.00 FEET AND A CENTRAL CONCAVE OF 19°33'36"; THENCE NORTHERLY ALONG THE ARC OF SAID CURVETOANGLE RIGHT;A DISTANCE OF 406.59 FEET, SAID ARC SUBTENDED THE WHOA'BEARS N 13°20'24" E, A DISTANCE OF 404.62 FEET BY A THE EN O CURVE; THENCE ALONG SAID RIGHT OF WAY S 66°52'48" E, A DISTANCE E THE 20.00/FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY OF HAVING A RADIUS OF 1171.00 FEST 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 • CHORD WHICH BE END N 23°34'54" E, A DISTANCE OF 18.87 FEET TO TH D. A CURVE; THENCE ALONG THE EASTERLY RIGHT OF WAY OF CLARKE ROADN OF 65°57'24" W, A DISTANCE OF 20.00 FEET TO THE BEGINNING OF A CUREN CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 1191.00.FEET AND AE (Page 1 of 2) CENTRAL ANGLE OF 17°29'14"; THENCE NORTHERLY ALONG SAID RIGHT WAY AND THE ARC OF SAID CURVE TO THE RIGHT, OF F 363.50 SAID ARC SUBTENDED BY A CHORD WHICH BEARS N 32D147'13"E, OA DISTANCEET OF 362.10 FEET TO THE END OF THE CURVE; THENCE INING EASTERLY RIGHT OF WAY OF CLARKE ROAD N 41°31'50"1E,�A DISTANCEALONG THE 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 BEGINNIN 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 DISTANC2 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) This redlined draft, generated by CompareRite - The Instant Redliner, shows the differences between - original document : A: \FINALPLN.NEW and revised document: A: \FINALPLN.NW2 Deletions appear as struck-through text Additions appear as double underlined text -20-