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HomeMy WebLinkAboutVI (D1) Development Agreement Agenda 6-05-2001 Item VI DI FOLEY & LARDNER MEMORANDUM CLIENT-MATTER NUMBER 020377-0533 TO: The Honorable Mayor and City Commissioners of the City Ocoee FROM: Paul E. Rosenthal, Esq., City Attorney DATE: May 22, 2001 RE: Avanti/West Groves Subdivision: Development Agreement The City has required that the owners of the "West Groves Property" enter into a Development Agreement in connection with the approval of the Preliminary Subdivision Plan for the Avanti/West Groves Subdivision ("the Preliminary Plan"). The Development Agreement addresses certain responsibilities of the Developer (and its successors) with respect to the development of the West Groves Property. Certain obligations of the City are also addressed, as well as development entitlements granted by the City to the Developer. The following is a summary of the highlights of the Development Agreement: (1) The Development Agreement places in the Public Records the Conditions of Approval and the Waivers set forth on the Preliminary Plan. (2) Water and sewer improvements are to be extended to the West Groves Property pursuant to a separate agreement between the Developer and Orange County. (3) Tracts W, W-1 and W-3 as shown on the Preliminary Plan arc to be dedicated to the City without any road impact fee credits or other compensation. The City is not entitled to require the conveyance of these lands until eighteen (I8) months after approval of the Preliminary Plan provided that the Final Plan has been approved at such time. The City may require conveyance of these lands at an earlier date if the City gives notice that it intends to proceed with the construction of certain improvements thereon. (4) Tract W is a rectangular shaped parcel on the northern end of the West Groves Property which provides a second access from Ocoee-Apopka Road (CR 437) west to the West Groves Property. This Tract is to be publicly dedicated and will also provide public access to the adjacent property to the north and south thereof which is not part of the Avanti/West Groves Subdivision. A paved public roadway consisting of two 12 foot drive lanes designed as an urban section, with a minimal left turn lane requirement leading to CR 437 and a minimal left turn lane \\V 006 218991.1 intersection improvement at CR 437, will be constructed on Tract W. Construction will occur at such time as Villages C-3 and C-4 are developed, but in no event later than 114 months from the recording of the first plat for any portion of the West Groves Property. These improvements will be constructed by the Developer unless they are required at an earlier date by the adjacent landowners to the north and south in which case the improvements will be constructed by those landowners. The public roadway will connect to the private roadway within the development as shown on the Preliminary Plan. (5) In the event the Developer constructs the roadway improvements within Tract W, the City may require that utility improvements be oversized at the City's expense. (6) Tract W-1 is the primary public entrance to the development located at the southern end of the property and provides access from Ocoee-Apopka Road. Tract W-1 will connect to the private portion of West Groves Boulevard which will be gated to preclude public access. Additionally, Tract W-t connects to Tract W-3 which will provide a public extension of West Groves Boulevard to connect to the Coca-Cola Property owned by the City. (7) The Developer is obligated to construct a four-lane median divided road section, together with appropriate turn lanes and striping within Tract W-1. The two outside lanes will initially be constructed as part of the first phase of development and will be completed prior to issuance of a Certificate of Completion. The two interior lanes will be constructed by the Developer at the time of development of the commercial or multi-family parcels adjacent thereto or at the time of development of Villages C-3/C-4. Additionally, the City may require that the Developer construct the two interior lanes at an earlier date if needed in connection with the development of the Coca-Cola Property. The Developer will not receive any road impact fees or reimbursement for these improvements on Tract W-1. (8) The Developer will dedicate Tract W-3 to the City, but is not required to make any improvements thereto. Road improvements on Tract W-3 will be the financial responsibility of the City to the extent needed for development of the Coca-Cola Property. (9) The City, at the City's expense, is responsible to design, engineer, permit and construct all required intersection improvements located within the CR 437 right- of-way at the intersection of CR 437 and Tract W-1, including but not limited to, turn lanes, deceleration and acceleration lanes, paving, drainage and othcr required intersection improvements. These improvements must be completed no later than the date of completion of improvements to be constructed by Orange County for the West Road connection to CR 437 on the east side of the CR 437 right-of-way. (10) Upon approval of the Preliminary Plan the City will issue a Final Certificate of Concurreney. Subject to the Developer complying with certain development 006.218991.1 2 obligations and commencing construction of Phase 1AI of the subdivision, the development will not be subject to any further concurrency review by the City. (11) Tracts R through R-6 as shown on Drawing 3b of the Preliminary Plan will be conveyed to the City following the issuance of the Water Management District permits, unless conveyance to the Water Management District is otherwise required. Except for Tract R-6, public access on these lands will be prohibited and no trespassing signs will be posted by the City. It is anticipated that Tract R- 6 will be utilized for public access to Lakc Apopka in connection with the future development of the Coca-Cola Property recreational facilities. Other "R" Tracts may be subject to conservation casements. (12) The Developer will provide the City with an exclusive easement for monument signage at the northwest and southwest corners of the intersection of CR 437 and West Road Extension. This monument signage would be utilized by the City in connection with the development of the Coca-Cola Property. The specific provisions of the Development Agreement are the result of lengthy and extensive discussions with the Developer. The City staff supports the approval of the agreements set forth in the Development Agreement. RECOMMENDATION It respectfully is recommended that the Honorable Mayor and City Commissioners approve the Development Agreement for West Groves between Torn West, Inc., Tom West, individually and as Trustee, and South Apopka Citrus Fruit Company and the City and authorize execution thereof by the Mayor and City Clerk. PER/jh enclosure 006.218991.1 3 THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Paul E. Rosenthal, Esy. FOLEY& LARDNER I 1 Nonh Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407)423-7656 RETURN TO: Jean Grafton, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407)656-2322 DEVELOPMENT AGREEMENT (West Groves) THIS DEVELOPMENT AGREEMENT ("this Agreement") is made and entered into as of the day of , 2001 by and between TOM WEST, INC., a Florida corporation, TOM WEST, individually and as Trustee, and SOUTH APOPKA CITRUS FRUIT COMPANY, a Florida corporation, whose mailing address is P. O. Box 250, Ocoee, Florida 34761-0250 (hereinafter collectively 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, Attention: City Manager (hereinafter referred to as the "City"). WITNESSETH: 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, pursuant to the application of the Developer on June , 2001 the Ocoee City Commission approved, subject to the execution of this Agreement, the Preliminary Subdivision Plan for Avanti/West Groves, as prepared by Hartman & Associates, Inc. and being date stamped as received by the City on May 2, 2001, with such additional revisions thereto, if any, as may be reflected in the minutes of said City Commission meeting (collectively, the "Preliminary Plan"); and WHEREAS, the Developer anticipates the submission to the City of a Final Subdivision Plan for the development of the Property which will be based upon and be 006.218694.3 consistent with the Preliminary Plan and all references herein to the "Final Plan" shall refer to such Final Subdivision Plan as it may be approved by the Ocoee City Commission; and WHEREAS, the Developer and the City desire to execute this Agreement in order to evidence their mutual agreement as to certain matters related to the development of the Property and as a condition to the approval of the Preliminary Plan by the City. 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: 1. Recitals; Definitions. The above recitals are true and correct and incorporated herein by this reference. All capitalized terms not otherwise defined herein shall be as defined or described on the Preliminary Plan and Final Plan unless otherwise indicated. 2. Development of the Property. 1. The Developer hereby agrees to develop the Property in accordance with the Final Plan and all permits and approvals issued by the City and other governmental entities with respect to the Property. As of the date hereof, the Preliminary Plan has been approved by the City, such Preliminary Plan being hereby incorporated herein by reference as if fully set forth herein. 2. The Developer 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 Developer 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 Preliminary Plan and shall also be set forth on the Final Plan. 3. Except as otherwise expressly set forth in this Agreement and the Preliminary Plan, it is agreed that the Final Plan and all preliminary 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, as it may from time to time be amended, and this Agreement, it is agreed that the provisions of this Agreement shall control. 3. Waivers from the Ocoee Land Development Code. As part of the approval of the Preliminary Plan, the Developer has been granted waivers from the requirements of the Ocoee Land Development Code, said waivers being set forth in Exhibit "C" attached 006.218694.3 -2- hereto and by this reference made a part hereof (the "Waivers"). The Waivers shall also be set forth on the Final Plan. 4. Publicly Dedicated Improvements. The Developer agrees, at the Developer's expense, to undertake and complete the following improvements in accordance with the Final Plan, which Final Plan will be consistent with the off-site improvements as shown and depicted on the Preliminary Plan. All such improvements shall be completed by the times indicated below: PUBLICLY DEDICATED IMPROVEMENTS: COMMENCEMENT TIME FRAME (a) Tract W-1 (West Road Extension (Phase See Section 9 1)) (dedicated to City of Ocoee) (b) Tract W (West Groves Boulevard (Public)) See Section 9 (dedicated to City of Ocoee) (c) Water and Sewer Improvements pursuant to that certain Agreement between Developer Prior to issuance of first and Orange County, Florida dated August building permit unless 29, 2000 ("Water and Sewer otherwise agreed by the City Improvements") (dedicated or conveyed to with respect to model homes Orange County) 5. Tract W. The Developer shall dedicate and convey Tract W to the City for public right-of-way purposes. The dedication and conveyance of Tract W will be subject to the following conditions: 1. The Developer, and its successors and assigns, shall have the right to construct a publicly dedicated roadway and related utility improvements on Tract W, such roadway and utility improvements to be in accordance with the Final Plan, which Final Plan will be consistent with the Preliminary Plan. The Developer will provide the City with at least sixty (60) days notice prior to the commencement of construction of any roadway and/or utility improvements within Tract W. Following receipt of such notice, the City may request that the Developer provide an estimate of the cost of oversizing the utility improvements within Tract W beyond the sizing set forth in the Final Plan. Within forty (40) days of receipt of such estimate the City will advise the Developer if it desires to have all or a portion of the utility improvements oversized within Tract W. If the Developer constructs the roadway and related utility improvements within Tract W or installs any utility improvements within Tract W prior to construction of the roadway, then at the time of any such construction, the City may require the Developer to oversize utility 006.218694.3 -3 improvements within Tract W, in which event the City shall, within thirty (30) days of completion of the roadway and acceptance thereof by the City (or if only utility improvements are installed, acceptance thereof by the County) and receipt of an invoice accompanied by supporting documentation, reimburse the Developer for the actual cost incurred by the Developer to oversize the utility improvements within Tract W, not to exceed the estimated cost thereof provided by Developer to City as aforesaid. The City and Developer acknowledge that the publicly dedicated roadway within Tract W will be known as West Groves Boulevard and will connect without gap or overlap to the private roadway referred to as West Groves Boulevard (Phase 4) (such connection to be via the options set forth in this Section). 2. The Developer shall be entitled to access to and through Tract W for all utility lines and road extension requirements to service the development on the Property, all in accordance with final plans approved by the City and subject to the above-referenced provisions regarding the oversizing of utilities. 3. In the event another developer, property owner, or the City, constructs roads, utilities, or CR 437 intersection improvements within Tract W, then the City shall cause such improvements to be designed and constructed in accordance with the Final Plan, which Final Plan shall be consistent with the Preliminary Plan. To the extent the final plans for Tract W to be constructed by others deviates from the Final Plan, the City agrees to submit such plans to the Developer for input, which input shall be considered in good faith by the City, prior to the City's final approval of any such plans and commencement of construction of improvements on Tract W by others. The Developer shall be entitled to fifteen (15) days to review and provide input prior to the City's final approval. Further, to the extent West Groves Boulevard is extended as a public or private roadway west through the adjacent "Battaglia Property" in accordance with Option A as shown on the Preliminary Plan, so as to connect at the eastern edges of Villages C-3/C-4, the City also agrees to submit such plans to the Developer for review and input as aforesaid. 4. In the event roadway and related utility improvements are constructed on Tract W by the City, or another developer or property owner, then such improvements shall be publicly dedicated and the Developer will have the right of access to and use of such improvements, and shall not be subject to any cost or assessment of fees in connection with such use, except for normal permitting fees, if any. 5. In the event (i) construction of the roadway on Tract W is not commenced within seven (7) years of the recording of the first plat for any portion of 006218694.3 -4_ the Property, and (ii) the Developer has not yet commenced construction of West Groves Boulevard (Phase 4), then the Developer will commence and timely complete construction of the roadway on Tract W within thirty (30) months of that date. As security for performance of such obligation, seven (7) years after recording of the first plat for any portion of the Property, the Developer shall deliver to the City a letter of credit, or other acceptable security, all in a form acceptable to the City, in an amount sufficient to provide the City with the ability to construct the roadway and related utility improvements within Tract W, all at the Developer's expense. 6. If the roadway and related utility improvements within Tract W have not been constructed at the time the Developer commences construction of West Groves Boulevard (Phase 4), then the roadway and related utility improvements within Tract W shall be constructed by the Developer as part of West Groves Boulevard (Phase 4). It is the intention of the City and Developer that the public and private portions of West Groves Boulevard will be constructed no later than (i) at the time of development of Villages C-3/C-4, or (ii) one hundred fourteen (114) months from the recording of the first plat for any portion of the Property, whichever first occurs, so that West Groves Boulevard will provide a connection for the development on the Property from CR 437. 7. In the event the Developer constructs the roadway within Tract W as required in connection with the development of Villages C-3/C-4, then the Developer shall be required to install within Tract W and the portion of West Groves Boulevard extending from Tract W to the eastern end of West Groves Boulevard at the eastern edge of Villages C-3/C-4 only the minimum facilities (consistent with applicable City codes) necessary to provide a continuous connection from CR 437 to the eastern end of West Groves Boulevard at the eastern edge of Villages C-3/C-4. Such minimum facilities shall include a paved road consisting of two (2) 12' drive lanes designed as an urban section, with a minimal left turn lane requirement leading to CR 437 and a minimal left turn intersection improvement at CR 437, all as shown on the "typical section" to be set forth in the Final Plan, which typical section will be consistent with the Preliminary Plan. 6. Tract W-1 and Tract W-3. The Developer shall dedicate and convey to the City Tract W-1 and Tract W-3 which together equal an area approximately 1800 ft. long by 120 ft. wide, and which tracts are depicted on Drawing 4 of the Preliminary Plan, such conveyance to be in accordance with the schedule set forth in Section 9 hereof. 006 218694 3 -5 7. CR 437 Intersection Improvements. 1. The City agrees to arrange for the design, engineering, permitting and construction of all required intersection improvements to be located within the CR 437 right-of-way at the intersection of CR 437 and Tract W-1, including, but not limited to, turn lanes, deceleration and acceleration lanes, paving, drainage, and other required intersection improvements, all at no cost or expense to the Developer. Such proposed intersection improvements are depicted on Drawing 4 of the Preliminary Plan; provided, however, that the City and Developer acknowledge that the City will be responsible to arrange for the final design of said intersection improvements which will be subject to review, approval and permitting by Orange County. Subject to such approval and permitting by Orange County, the City shall cause said intersection improvements to be completed no later than the date of completion of the improvements being constructed by Orange County for the West Road connection to CR 437 on the east side of the CR 437 right-of-way. The City may elect to have said intersection improvements incorporated into the aforesaid County project and in such event the City shall not be required to cause such improvements to be constructed prior to the date set forth in the schedule for the aforesaid County project. The Developer will, at no cost to the City, grant the City any temporary construction easements on the Property that may be necessary to construct said intersection improvements. 2. Following completion by Developer of the first phase of improvements within Tract W-1, the City shall thereafter always provide for a connection for vehicular and pedestrian ingress and egress between the Tract W-1 and CR 437 (thereby always providing vehicular and pedestrian access between the Project and CR 437); provided, however, that the foregoing shall not impose upon the City any obligation to construct a temporary connection between Tract W-1 and CR 437 in the event the Developer constructs the proposed improvements to Tract W-1 prior to the completion of the above referenced County project. Any such temporary connection between Tract W-1 and CR 437 shall be the responsibility of the Developer in accordance with such approvals and permits as may be granted by Orange County. 8. Improvements to Tract W-1. The Developer shall pave a four-lane, median-divided road section, together with appropriate turn lanes and striping, as depicted on the Preliminary Plan for the Tract W-1. Such roadway is to be from the entrance to the proposed single-family community at West Groves Boulevard (Phase 1), as shown on the Final Plan, easterly to the intersection with CR 437. The time frame for installation of the improvements is as follows: 006.218694.3 -6 1. At the time of construction of the first phase of development of the single- family dwelling units, the Developer shall, at the Developer's expense, construct two lanes of the four-lane road (outside lanes) on Tract W-1, from West Groves Boulevard to CR 437. These two lanes will blend appropriately with the CR 437 intersection improvements, whether temporary or permanent. These improvements shall be completed prior to issuance of a Certificate of Completion for the initial phase of the subdivision improvements. 2. Construction of the two interior lanes within Tract W-1 from West Groves Boulevard to CR 437 (and the two (2) outer lanes within Tract W- 1 if Developer has not previously completed construction of the two (2) outer lanes, as provided above), together with the final designed north and southbound turn lanes from Tract W-1 onto CR 437, shall be completed by the Developer, at the Developer's expense, and accepted by the City by the earlier of: (a) The date of completion of construction of a building on any portion of either the Parcel C-2 or Parcel R-3 zoning sections of the proposed development on the Property; or (b) The date of completion of construction and connection of the West Road Extension (Future) within Tract W-3 from the so- called "Coca-Cola property" into Tract W-1, said tract being the section of the West Road Extension that serves the single-family entry at West Groves Boulevard; or (c) The date of completion of the subdivision improvements in Villages C-3/C-4. If the Developer fails to complete the two interior lanes (along with the two outer lanes, if applicable) by the applicable date set forth above, the City may refuse to issue a Certificate of Completion for Villages C-3/C-4 until completion of said roadway improvements, and may, upon thirty (30) days written notice to the Developer, do, or cause to be done, the design, engineering, permitting and construction of the uncompleted portion of the two interior lanes (along with the two outer lanes, if applicable), all at Developer's expense. If the Developer fails to reimburse the City for any such costs advanced by the City, within thirty (30) days from Developer's receipt of a written invoice for same (along with supporting documentation), then the City may place a lien on either the commercial (Parcel C-2) or the multi-family (Parcel R-3) portions of the Property (as determined by the City) as security for the payment of such costs and may foreclose such lien in accordance with applicable law; provided, however, that in connection with the sale of said commercial or multi-family portions of the Property by the Developer to a third party and provided that any such sale occurs prior to the time that the City actually places a lien on said commercial or multi-family portions of the Property, the Developer shall be entitled to release said commercial and/or multi-family portions of the -7- 006218694.3 Property from any right of the City to place a lien thereon by providing to the City alternative collateral reasonably acceptable to the City which secures the aforesaid reimbursement obligation. 9. Conveyance of Right-of-Way Land. The Developer shall dedicate and convey to the City Tract W, Tract W-1 and Tract W-3 (collectively, the "Right-of-Way Land") within forty-five (45) days following receipt of written notice from the City requesting the same (or any portion thereof); provided, however, that notwithstanding the foregoing and subject to the provisions of Section 9(B) below: (i) the Developer shall not be obligated to convey the Right-of-Way Land to the City prior to approval of the Final Plan, (ii) the Developer shall not be obligated to convey the Right-of-Way Land to the City prior to eighteen (18) months following approval of the Preliminary Plan, and (iii) Tract W-1 shall be dedicated and conveyed no later than the time of platting of the first phase of the residential development on the Property. 2. Notwithstanding the foregoing provisions of Section 9(A) above and if the City desires conveyance at an earlier date, then following approval of the Final Plan, the "Right-of-Way Land" (or any portion thereof) shall be conveyed to the City within forty-five (45) days following receipt of a notice of intent from the City setting forth the intention to begin construction of improvements within the portion of the Right-of-Way Land which is the subject of the notice. 3. All references to Tract W-1 shall include the necessary intersection radii at the CR 437 and West Road Extension intersection, provided, however, said additional area shall not exceed the area provided for the perpetual exclusive easement for monumental signage at the northwest and southwest corners of the intersection. Within thirty (30) days of receipt of the written request for any conveyance, the Developer shall provide the City with a metes and bounds legal description and sketch of description of the Right-of-Way Land (or the portion thereof which the City is requesting be conveyed), said description and sketch being certified to the City and subject to the review and approval of the City; provided, however, if the Right-of-Way Land (or any portion thereof) is not conveyed prior to platting of such Right-of-Way Land (or portion thereof), then the Right-of-Way Land (or portion thereof) will be platted as a separate tract(s) and will be conveyed by reference to the recorded plat. The Right-of-Way Land shall be dedicated and conveyed by the Developer to the City 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. In the event of such conveyance, the Developer shall have the right 006 218694 3 -8- to (a) make improvements to and utilize Tract W as provided in Section 5 hereof, and (b) make improvements to Tract W-1 in accordance with the Final Plan, which Final Plan will be consistent with the Preliminary Plan, and upon dedication and conveyance of Tract W-1 as provided herein utilize Tract W-I and the improvements located therein in accordance with the Final Plan, which Final Plan will be consistent with the Preliminary Plan. 4. The Developer shall, contemporaneously with the dedication and conveyance of the Right-of-Way Land (or any portion thereof) to the City, 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 the Right-of-Way Land (or portion thereof being conveyed) 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 and dedication of the Right-of-Way Land, including the cost of title work, shall be borne solely by the Developer. Real property taxes on the Right-of-Way Land shall be prorated as of the day before the City's acceptance of the dedication and conveyance of the same, and the prorated amount of such real property taxes attributable to the Developer shall be paid and escrowed by the Developer 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. 5. Neither the Developer, its successors and assigns, nor any other person or entity shall be entitled to any road impact fee credits or other compensation of any kind for, on account of, or with respect to the required dedication and conveyance of the Right-of-Way Land and the temporary construction easements and signage easements described herein to the City or the design, engineering, permitting and construction of the improvements to be constructed on the Right-of-Way Land by the Developer. 10. Concurrency. 1. Immediately following the approval of the Preliminary Plan and this Agreement, the Developer shall apply for a Final Certificate of Concurrency for the development of the Property in accordance with the procedures set forth in the City's Land Development Code (the "Final Certificate of Concurrency"). The City agrees to promptly issue the Final Certificate of Concurrency following receipt of such application. 006.218694.3 -9 2. It shall be the responsibility of Developer to obtain approval of the Final Plan for the Property and to commence construction of subdivision improvements prior to the expiration of the Final Certificate of Concurrency or any extensions thereof, or any Transportation Capacity Reservation Certificates ("TCRC's") which may be issued pursuant to the provisions of the Ocoee Land Development Code. The City makes no warranty or representation regarding the ability of the Developer to obtain a new Final Certificate of Concurrency or TCRC should Developer fail to commence construction of subdivision improvements prior to the expiration of the Final Certificate of Concurrency or any TCRC, respectively. 3. The City represents to the Developer that: (a) The development of the Property will not be subject to further concurrency review under the City's Comprehensive Plan and Land Development Code so long as the Developer obtains approval of the Final Plan and commences construction of subdivision improvements in accordance therewith prior to the expiration of the Final Certificate of Concurrency or a TCRC with respect to Phase 1A1 on the Final Plan, which Final Plan will be consistent with the Preliminary Plan ("Phase 1A1"); (b) The final Certificate of Concurrency shall not expire so long as a TCRC is obtained with respect to the portion of the Property referred to as Phase 1A1; and (c) In the event the Developer obtains a TCRC in accordance with the provisions of the Ocoee Land Development Code which reserves sufficient transportation capacity for the buildout of Phase 1A1, then the development of the entire Property will not be subject to further concurrency review for transportation under the City's Comprehensive Plan and Land Development Code so long as the Developer obtains approval of the Final Plan and commences construction of subdivision improvements in accordance therewith prior to the expiration of such TCRC. 11. Master Drainage System. 1. The Developer shall be responsible for the final design of the master drainage system for the Property, and obtaining from the St. Johns River Water Management District (the "District") all permits required to construct the master drainage system. The City agrees to cooperate with the Developer in its efforts to obtain such permits from the District. The City recognizes and agrees that the Developer shall be entitled to receive from the District the maximum number of credits, if any, available from 006.218694.3 -10 the District in connection with the Developer's grant of conservation easements and dedication of wetlands and other protected areas; provided, however, that the foregoing shall not be construed to authorize the destruction of any wetlands or development within the wetlands except as expressly set forth on the Final Plan, which shall be consistent with the Preliminary Plan. 2. After the Developer has obtained all such permits from the District, it shall dedicate and convey to the City those portions of Tracts R, R-1, R- 2, R-3, R-4, R-5 and R-6 (as depicted on Drawing 3b of the Preliminary Plan) not required by the District to be dedicated to the District; provided, however, that Tract R-6 shall be dedicated and conveyed to the City and the City may require that Tract R-6 be dedicated and conveyed to the City at an earlier date. Any such dedication or conveyance shall be subject to the following: (a) The right of the Developer to install utility facilities (including without limitation utility lines and lift stations) and roadway facilities as shown on the Final Plan, which shall be consistent with the Preliminary Plan, on, over, under and through the wetlands, subject to compliance with all applicable governmental ordinances, laws, rules and regulations. (b) The condition that there shall be no public access to any portion of such properties (except for Tract R-6) which is to be dedicated and conveyed to the City. (c) If requested by the Developer, the City, at its expense, shall post no trespass signs on Tracts R-1, R-2, R-3, R-4 and R-5, provided, however, that the City shall have no obligation to maintain, repair or replace such signs. The Developer may, at its option, maintain, repair and/or replace such signs at the Developer's expense. Developer may elect to install fences on the Developer's property to prohibit public access, subject to compliance with all permitting requirements. 3. Any wetland tract not dedicated or conveyed to the City or the District shall be encumbered by a conservation and drainage easement in form required by the City and the District and conveyed to the homeowners association to be formed with respect to the Property. Any dedication or conveyance of a conservation easement shall provide a specific reservation by the Developer so that the Developer may develop and maintain a boardwalk and dock/pier (including utility facilities for the boardwalk and dock) in the location generally depicted on Drawing 3 and 0062186943 -11- on Drawing 6 on the Preliminary Plan, subject to the obtaining of all applicable permits necessary for the construction of such improvements. 12. Monument Signage Easement. At the time of recordation in the Public Records of Orange County, Florida of the first subdivision plat for any portion of the Property, the Developer shall grant to the City (or its designees) a perpetual non-exclusive easement for monument signage at the northwest and southwest corners of the intersection of CR 437 and the West Road Extension as shown on Sheet 4 of the Preliminary Plan. The easement areas will be triangular in shape and the rear line of each easement shall be 75 linear feet; provided, however, that all setback obligations related to Parcel R-3 and Parcel C-2 will be measured from the right-of-way line of the roads, not from the area which includes assigned easements; the intent of the City being that no additional setback obligations will be required due to the granting of the sign easements. Further (i) the form and content of all such monument signage erected by the City or its designees and the location thereof within the easement area shall be reasonably acceptable to the Developer and consistent with the signage and architectural plans for the subject property; and (ii) the signage erected by the City or its designees shall be in addition to (and shall not in any way diminish) the amount of signage which may be constructed by the Developer and its designees on the Property. 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 (1) hand delivered to the other party at the address appearing on the first page of this Agreement, or (ii) when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, 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. 14. Assignment; Covenant Running with the Land. 1. The Developer may assign and transfer all of its rights, privileges, obligations and responsibilities under this Agreement to a successor developer who acquires fee simple title to the Property and in connection therewith assumes all of the rights, privileges, obligations and responsibilities of the Developer under this Agreement. Upon any such assignment and assumption and the recording thereof in the Public Records of Orange County, Florida, it is agreed that the Developer shall be released from all further obligations and responsibilities hereunder so long as the form of any such assignment and assumption has been approved by the City. 2. 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. -12- 006.218694.3 15. Recordation of Agreement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, 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. 16. Applicable Law. This Agreement and the provisions contained herein shall be construed, controlled, and interpreted according to the laws of the State of Florida. 17. Time of the Essence. Time is hereby declared of the essence to the lawful performance of the duties and obligations contained in this Agreement. 18. Agreement; Amendment. This Agreement, along with the Preliminary Plan, 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. 19. Further Documentation. The parties agree that at any time following a request 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. 20. Specific Performance. Both the City and the Developer shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. 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. 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. 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. 24. Severability. If any word, 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 -13- 006218694.3 provision and such holding shall not affect the validity of the remaining portion hereof so long as the purpose and intent of this Agreement can still be achieved. 25. Effective Date. The Effective Date of this Agreement shall be the day this Agreement is last executed by a party hereto and such date shall be inserted on Page 1 of this Agreement. -14- 006 218694 3 IN WITNESS WHEREOF, the Developer and the City have caused this instrument to be executed by their duly authorized elected officials, partners, and/or officers as of the day and year first above written. DEVELOPER: Signed, sealed and delivered in the presence of: TOM WEST, INC., a Florida corporation By: Print Name Name: Print Name Title: (CORPORATE SEAL) Print Name TOM WEST, individually and as trustee Print Name SOUTH APOPKA CITRUS FRUIT COMPANY, a Florida corporation By: Print Name Name: Print Name Title: (CORPORATE SEAL) -1S- 006.218694.3 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 as the of TOM WEST, INC., a Florida corporation, who [ ] is personally known to me or [ ] produced as identification, and that he/she acknowledged executing the same on behalf of said corporation, in the presence of two subscribing witnesses, 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 , 2001. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number(if not legible on seal): My Conunission Expires(if not legible on seal): 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 TOM WEST, individually and as trustee, who [ ] is personally known to me or [ ] produced as identification, and that he/she acknowledged executing the same in the presence of two subscribing witnesses, 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 , 2001. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number or not legible on seal): My Commission Expires Of not legihle on seal): 006.218694.3 -16- 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 as the of SOUTH APOPKA CITRUS FRUIT COMPANY, a Florida corporation, who [ ] is personally known to me or [ ] produced as identification, and that he/she acknowledged executing the same on behalf of said corporation in the presence of two subscribing witnesses, 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 , 2001. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number Of not legible on seal): My Commission Expires Of not legible on seal), -17-006.218694.3 CITY: Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA By: Print Name: S. Scott Vandergrift, Mayor 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 HELD ON Approved as to form and legality this , 2001 UNDER AGENDA day of , 2001. ITEM NO. FOLEY & LARDNER By: City Attorney 006.218694 3 -18- 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 VANDERCRIFT 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 , 2001. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number or not legible en seal): My Commission Expires (if no,legible on seal): _ -19- 006.2186943 JOINDER AND CONSENT TO DEVELOPMENT AGREEMENT ( ) The undersigned hereby certifies that it is the holder of an indenture of mortgage, dated the day of , and recorded in Official Records Book Page , Public Records of Orange County, Florida, upon the above described property and the undersigned for and in consideration of valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby join in and consent to the execution of the foregoing Development Agreement ( ) and agrees that the lien of its mortgage described herein above shall be subordinated to the aforedescribed Development Agreement. Signed, sealed and delivered in the presence of: (Print name of Mortgage holder) Print Name: By: Printed Name: Title: Print Name: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 20 , by (Name of Officer) who is the (Title) of (Name) He/she [ ] is personally known to me, or [ ] has produced as identification. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number of not legible on seal):_. My Commission Expires(if not legible on seal): -20- 00 218694.3 6 EXHIBIT "A" TIlE PROPERTY A PARCEL OF LAND LOCATED WITHIN SECTION 1, TOWNSHIP 22 SOUTH, RANGE 27 EAST AND SECTION 6, TOWNSHIP 22 SOUTH, RANGE 28 EAST AND SECTION 31, TOWNSHIP 21 SOUTH, RANGE 28 EAST AND SECTION 36, TOWNSHIP 2! SOUTH, RANGE 27 EAST, ORANGE COUNTY, FLORIDA BEING MORE PARTICULARLY DESCRIBED AS: BEGIN AT THE NORTHEAST CORNER OF THE NORTHWEST 1/4 OF SECTION 6, TOWNSHIP 22 SOUTH, RANGE 28 EAST; THENCE RUN S. 00°54'44" W. ALONG THE EAST LINE OF SAID NORTHWEST 1/4 FOR A DISTANCE OF 821.06 FEET; THENCE DEPARTING SAID EAST LINE RUN S. 28°29'20" E. FOR A DISTANCE OF 368.35 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF COUNTY ROAD 437 (OCOEE-APOPKA ROAD), SAID POINT BEING 25.0 FEET WEST OF CENTERLINE; THENCE RUN S. 28°17'18" W. ALONG SAID WESTERLY RIGHT-OF-WAY LINE FOR A DISTANCE OF 71.60 FEET; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY LINE RUN N. 28°29'20" W. FOR A DISTANCE OF 301.28 FEET TO A POINT ON THE AFORESAID EAST LINE OF THE NORTHWEST '/4 OF SECTION 6; THENCE RUN N. 13°38'09" W. FOR A DISTANCE OF 474.60 FEET; THENCE RUN N. 00°54'44" E. FOR A DISTANCE OF 480.10 FEET TO A POINT ON THE NORTH LINE OF SAID NORTHWEST '/4; THENCE RUN S. 88°11'36" W. ALONG SAID NORTH LINE FOR A DISTANCE OF 1200.47 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST ''44 OF THE NORTHWEST '/4 OF SAID SECTION 6; THENCE RUN S. 01°26'05" W. ALONG THE EAST LINE OF SAID NORTHWEST 1/4 OF THE NORTHWEST '/4 FOR A DISTANCE OF 793.52 FEET; THENCE RUN N. 87°28'22" E. FOR A DISTANCE OF 706.25 FEET TO A POINT LYING 41.82 FEET EAST OF THE EAST LINE OF THE SOUTHWEST 'A OF THE NORTIIEAST 1/4 OF TIIE NORTHWEST '''A; THENCE RUN S. 01°10'38" W. ALONG A LINE LYING 41.82 FEET EAST OF AND PARALLEL TO SAID EAST LINE OF THE SOUTHWEST 'A OF THE NORTHEAST '/ OF THE NORTHWEST 1/4 FOR A DISTANCE OF 589.91 FEET; THENCE RUN S. 01°22'08" W. ALONG A LINE LYING 41.82 FEET EAST OF THE EAST LINE OF THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 OF THE NORTHWEST '/4 OF SECTION 6 FOR A DISTANCE OF 576.78 FEET; THENCE RUN N. 87°28'23" E. FOR A DISTANCE OF 359.74 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF COUNTY ROAD 437 (OCOEE-APOPKA ROAD), SAID POINT BEING 60.0 FEET WEST OF CENTERLINE; THENCE RUN S. 28°17'18" W. ALONG SAID WESTERLY RIGHT-OF-WAY LINE FOR A DISTANCE OF 976.19 FEET TO THE POINT OF CURVATURE OF A CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 2351.83 FEET, A CENTRAL ANGLE OF 12°04'51", A CHORD BEARING OF S. 22°14'52" W. AND A CHORD LENGTH OF 494.97 FEET; THENCE ALONG THE ARC OF SAID CURVE, AN ARC LENGTH OF 495.89 FEET TO A POINT IN THE CENTERLINE OF THE STATEN BRANCH; THENCE RUN NORTHWESTERLY ALONG SAID CENTERLINE FOR A DISTANCE OF 3800 FEET MORE OR LESS TO A POINT ON THE SOUTH LINE OF LOT "B" OF AN UNNAMED SUBDIVISION, RECORDED IN PLAT BOOK B, PAGE 129 OF THE PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA; THENCE RUN S. 88 '03'01" W. ALONG SAID SOUTH LINE FOR A DISTANCE OF 729.14 FEET TO THE SOUTHWEST CORNER OF SAID LOT "B"; THENCE RUN N. 45°03'50" E. ALONG THE WEST LINE OF LOTS 'B" AND "A" OF SAID UNNAMED SUBDIVISION FOR A DISTANCE OF -21- 006 218694 3 2100.33 FEET TO A POINT ON THE NORTH LINE OF THE NORTHEAST V. OF SECTION 1, TOWNSHIP 22 SOUTH, RANGE 27 EAST, SAID POINT BEING S. 89°40'52" W. AND A DISTANCE OF 330.00 FEET FROM TILE NORTHEAST CORNER OF THE NORTHEAST '/a OF SAID SECTION 1; THENCE RUN ALONG THE WESTERLY AND NORTHERLY LINE OF GOVERNMENT LOT 1, SECTION 36, TOWNSHIP 21 SOUTH, RANGE 27 EAST THE FOLLOWING COURSES AND DISTANCES: N. 04°43'24" E. FOR A DISTANCE OF 963.60 FEET; THENCE RUN N. 39°28'27" E. FOR A DISTANCE OF 382.80 FEET TO A POINT ON THE WEST LINE OF THE SOUTHWEST '/a OF SECTION 31, TOWNSHIP 21 SOUTH, RANGE 28 EAST; THENCE RUN N. 00°19'59" W. ALONG SAID WEST LINE FOR A DISTANCE OF 1643.36 FEET TO THE NORTHWEST CORNER OF THE SOUTHWEST '/a OF SAID SECTION 31; THENCE RUN N. 89°53'45" E. ALONG THE NORTH LINE OF SAID SOUTHWEST '/o FOR A DISTANCE OF 2356.06 FEET TO A POINT LYING S. 89°53'45" W. AND A DISTANCE OF 420.00 FEET FROM THE NORTHEAST CORNER OF THE NORTHEAST '/< OF THE SOUTHWEST '/ OF SAID SECTION 31; THENCE RUN S. 00°23'39" E. FOR A DISTANCE OF 210.00 FEET; THENCE RUN N. 89°53'45" E. FOR A DISTANCE OF 210.00 FEET; THENCE RUN S. 00°23'39" E. FOR A DISTANCE OF 420.00 FEET; THENCE RUN N. 89°53'45" E. FOR A DISTANCE OF 210.00 FEET TO A POINT ON THE EAST LINE OF AFORESAID NORTHEAST 'h OF THE SOUTHWEST V. OF SECTION 31; THENCE RUN S. 00°23'39" E. ALONG SAID EAST LINE FOR A DISTANCE OF 689.50 FEET; THENCE RUN N. 89°46'34" E. ALONG A LINE LYING 120.00 FEET NORTH OF AND PARALLEL TO THE SOUTH LINE OF NORTIWEST '/a OF TIIE SOUTIIEAST '/a OF SAID SECTION 31 FOR A DISTANCE OF 1313.25 FEET TO A POINT ON THE EAST LINE OF SAID NORTHWEST '/a OF THE SOUTHEAST ''/a; THENCE RUN S. 00°10'13" E. ALONG SAID EAST LINE FOR A DISTANCE OF 38.00 FEET; THENCE RUN N. 89°48'52" E. ALONG A LINE LYING 82.0 FEET NORTH OF AND PARALLEL TO THE SOUTH LINE OF NORTHEAST '/a OF THE SOUTHEAST '/4 OF SAID SECTION 31 FOR A DISTANCE OF 89.73 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF AFOREMENTIONED OCOEE-APOPRA ROAD (COUNTY ROAD 437), SAID POINT BEING 25.00 WEST OF CENTERLINE, SAID POINT ALSO BEING A POINT ON A CURVE CONCAVE WESTERLY, IIAVING A RADIUS OF 1884.86 FEET, A CENTRAL ANGLE OF 02°34'48", A CHORD BEARING OF S. 14°45'37" W. AND A CHORD LENGTH OF 84.87 FEET; THENCE ALONG THE ARC OF SAID CURVE, AN ARC LENGTH OF 84.88 FEET TO A POINT ON SAID SOUTH LINE OF THE NORTHEAST '/a OF THE SOUTHEAST ''/>; THENCE RUN S. 89°48'52" W. ALONG SAID SOUTH LINE FOR A DISTANCE OF 67.87 FEET TO THE SOUTHEAST CORNER OF THE NORTHWEST '/a OF THE SOUTHEAST '/a OF SAID SECTION 31; THENCE RUN S. 89°46'34" W. ALONG AFORESAID SOUTH LINE OF NORTHWEST '/a OF TIIE SOUTHEAST '/n FOR A DISTANCE OF 1312.78 FEET TO THE SOUTHEAST CORNER OF THE NORTHEAST % OF THE SOUTHWEST 'A OF SAID SECTION 31; TIIENCE RUN S. 00°18'06" E. FOR A DISTANCE OF 1436.20 FEET TO THE POINT OF BEGINNING. -22- 006.218694.3 EXHIBIT "B" CONDITIONS OF APPROVAL 1. The City of Ocoee is subject to the terms, provisions, and restrictions of F.S. 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. Any damage caused to Ocoee-Apopka Road, or damage caused to Tract W (West Groves Boulevard [Public]), Tract W-1 (West Road Extension [Phase 1]), or Tract W-3 (West Road Extension [future]) following their conveyance to the City, as a result of the construction activities related to the project, shall be promptly repaired by the Developer to the applicable government standards at the Developer's sole cost and expense. 3. There shall be no access from the property to CR 437 or to Tract W-1 (West Road Extension [Phase 1]) or Tract W-3 (West Road Extension [future]) except at the approved locations shown on the Final Subdivision Plan. 4. A perpetual, non-exclusive easement for access over all internal roadways and paved areas shall be granted in favor of the City of Ocoee and other applicable authorities for law enforcement, fire, and other emergency services. 5. All legal instruments, including but not limited to the declaration of easements, covenants and restrictions, association documents, and deeds conveying Property to the homeowners association, shall be approved by the City prior to plat approval. 6. A copy of the "Overall Master Plan" (Drawing 3), "Construction Phasing Plan" [Drawing 3.(a)], "Tract Designation Plan" [Drawing 3.(b)], and the Conditions of Approval [Drawing 3.(c)] from the Final Subdivision Plan approved by the City of Ocoee, shall be available for review by the prospective buyers in all sales offices. 7. Pursuant to the submission dated February 14, 2000 from Glatting, Jackson, et al, to the City of Ocoee, the attachment referred to as "Figure 1" depicts the approximate location of an abandoned eagles nest. In the event the eagle does return to the nest, a management plan will be developed and submitted to the US Fish & Wildlife Service and the Florida Fish and Wildlife Commission for approval and permit. 8. Appropriate signage will be provided on Parcels C-2 and R-3 as notification to future single-family lots purchasers of the intended use of the parcels. Signage will be a minimum of 32 sq. ft. and placed in locations approved by the City of Ocoee. 006 218694 3 -23- 9. Community improvements, as shown on Drawing 3.(b) and referred to as Tracts A, B, C, D, F, H, J-1, K, K-1, L, M, N, P, T, U, V, W-2, X, Y, Z, Z-1 and Z-2, will be privately-owned and maintained by a homeowners association. The subdivision and its associated documents shall comply with the private community standards of Orange County Resolution No. 96-M-22. 10. No development will be allowed within 25' of the 100-year flood plain or wetlands, except at locations specifically approved as part of the Preliminary Subdivision Plan. 11. All existing structures (including buildings, power lines, agricultural facilities, etc.), as well as existing utility easements and access easements, will be removed and/or terminated prior to or during construction of the development replacing those uses. 12. "West Groves Boulevard" will be designed so it will provide continuous, unobstructed access from the entire subdivision to CR 437, as depicted on Drawing 3.(a). The Developer will either connect Village C-3 and C-4 to Tract W (West Groves Boulevard [Public]) over West Groves Boulevard (Phase 4, Option A), or over West Groves Boulevard (Phase 4, Option B), or a third realignment acceptable to the City; all taking into account the then-available access into the Battaglia Property. The road shall have not less than two (2) unobstructed drive lanes, each of which shall be a minimum of 12' wide; provided that the Developer may construct a larger section (such as, without limitation, a 32' paved section that provides 8' of designated parking on one side of the road, broken by periodic curb islands, with no parking on the other side of the road). Notwithstanding, there shall be no on-street parking within the drive lanes along any portion of West Groves Boulevard, with said restriction noted on appropriate signage and enforced by the homeowners association in accordance with the homeowners association documents. Nothing herein shall he construed as imposing an obligation on the City to require the developer of the Battaglia Property to facilitate the continuation of West Groves Boulevard through West Groves Boulevard (Phase 4, Option A). 13. Tracts W (West Groves Boulevard [Public]), W-I (West Road Extension [Phase 11) and W-3 (West Road Extension [future]) depicted on Drawing 3.(b) shall be conveyed to the City of Ocoee pursuant to terms contained within the Developers Agreement. Provided, however, that the Developer shall not be required to make any conveyance prior to approval of a Final Subdivision Plan. If the conveyance is prior to platting, then the Developer shall be responsible for a Sketch of Description and legal description; otherwise, the land to be conveyed will be shown as a separate tract on the plat. Standard City developer agreement provisions related to conveyances will be applicable, including but not limited to the provision providing that no road impact fee credits will be granted for the conveyances. 14. a. Simultaneously with construction of the first phase of the development of the Property, the Developer shall construct a stabilized 12' wide emergency access (temporary) through Parcel R-3. The existence of the stabilized road shall be D06.218694.3 -24 maintained by the Developer until West Groves Boulevard from CR 437 to Village C- 3/C-4 has been completed. b. The location of the stabilized 12' Wide Emergency Access (temporary) shall be as depicted on Drawing 4. Furthermore, subject to the approval of the City, the Developer may choose to adjust the location of the road through Parcel R-3 so as not to inhibit the development of Parcel R-3. c. In addition to the foregoing, the Developer shall grant to the City a temporary access easement, in form and substance acceptable to the City, over the Stabilized 12' Wide Emergency Access (Temporary); the easement shall be effective commencing on the date of the first building permit for a single-family residential dwelling unit in the West Groves community, and terminating upon the completion of West Groves Boulevard from CR 437 to Village C-3/C-4. 15. The lift stations referenced as Tract E and Tract G on Drawing 3.(b) will be dedicated to Orange County. All such lift stations shall be fenced with black, vinyl chain-link fence, with posts and rails painted black, and shall be set back no less than 25' from any street. Such lift stations shall also be screened with hedge-type shrubbery, such as viburnum or ligustrum. 16. All retention ponds will be unfenced and with slopes leading into the pond which are no greater than 5-to-1; and back slopes no greater than 3-to-1. 17. If any portion of Parcel R-3 (which is the large parcel zoned R-3) is developed for any use which is not currently permitted in the R-1-AA zoning district, the developer of such portion(s) of Parcel R-3 shall construct a 6' buffer wall along the perimeter Property lines of the portions of Parcel R-3 which are developed for uses not permitted in the R-1-AA zoning district (except at the entrances to the parcel where a wall shall not be required). Provided, however, that in the event Parcel R-3 is developed for a use that requires a special exception in order for the use to be permitted in an R-1-AA district, then the City may, at its option, eliminate the requirement that a 6' buffer wall be constructed, or require another appropriate buffer to be constructed. Further, notwithstanding the foregoing provisions of this Condition of Approval, if Parcel R-3 is subdivided and a wall (or other appropriate buffer) is required, then the owner of each portion of the parcel shall construct the portion of the wall (or other appropriate buffer) at the time of development of its portion of Parcel R-3. In any case, a 6' buffer wall may be required at the time of Development Plan approval along Ocoee-Apopka Road and the Tract W-1 (West Road Extension [Phase 1]), except at entrances. 18. If there is a zoning designation which permits residential development or a school on the real Property which is adjacent to the southern boundary of Parcel C-2 (the +20 acre-parcel zoned C-2) when Parcel C-2 is developed, then the owner of Parcel C-2 shall construct a 6' buffer wall along the entire southern boundary of Parcel C-2. If there is no zoning designation for residential development or a school on the adjacent southern boundary when Parcel C-2 is developed, then no such wall shall be required. DD6218694.3 -25 Furthermore, no wall shall be required along the northern or eastern boundaries of Parcel C-2. This provision shall not exempt the property from the general screening provisions of Ordinance No. 99-23. For purposes hereof, "developed" means the issuance of a building permit for a commercial structure in accordance with the Final Subdivision Plan approved by the City. 19. a. With the exception of Tract W (West Groves Boulevard [Public]), W-1 (West Road Extension [Phase 1]), and W-3 (West Road Extension [future]), which shall be conveyed to the City of Ocoee, pursuant to Condition of Approval #13 above, all other roads within the subdivision shall be private roads, which will be owned and maintained by the homeowners association. b. The Developer shall develop Tract W-1 (West Road Extension [Phase I]). The City shall have the right, but not the obligation, to develop Tract W-3 (West Road Extension [future]). The Developer shall not be obligated to landscape the wall along Tract W-3 (West Road Extension [future]) until the earlier of (a) the installation of the road within Tract W-3 (West Road Extension [future]) by the City or its designee, or (b) the completion of the development of the single-family lots within Villages C-3 and C-4. c. The Developer shall construct Retention Pond A to provide drainage capacity for Tract W-3 (West Road Extension [future])). The City will not oppose the incursion into the adjacent wetlands due to the expansion of Retention Pond A, so long as the requirements of the St. Johns River Water Management District are met. d. The Developer shall provide a drainage easement within Tract K-1 for use in the conveyance of storm drainage from Tract W-3 (West Road Extension [future])) to Retention Pond A. The Developer is not responsible for conveyance of stormwater from Tract W-3 (West Road Extension [future]) to Retention Pond A. 20. Subject to Condition of Approval #4 above West Groves Boulevard shall remain closed to the general public. All secured entry gates shall be equipped with an Opticom system device (or similar device as approved by the City of Ocoee) to allow emergency access to the subdivision by fire/rescue, police, and other emergency response personnel. All residents within the development shall have access over and across all private roads within the subdivision, and shall be entitled to access through any of the gates within the residential portion of the subdivisions. No gates shall be permitted within the subdivision except as shown on the Final Subdivision Plan. 21. Certificates of completion for improvements for all Villages (except Village C-3 and C- 4) shall be issued without an access road connecting CR 437 to Village C-3 through the secondary access, Tract W (West Groves Boulevard [Public]. The City shall not issue a building permit for any houses constructed within Village C-3/C-4, unless an access road connecting to Village C-3 has been commenced. Furthermore, the City shall not issue a certificate of occupancy for any houses constructed within Villages C-3/C-4 unless the portion of Tract W (West Groves Boulevard [Public]) connecting CR 437 to -26- 006218694.3 Village C-3 has been constructed and extended to connect with the north/south portion of West Groves Boulevard (Phase I) contained within Village B-2. 22. All single-family residential dwelling units shall be in a private, gated community with private roads, sidewalks, and related facilities. Each subdivision plat (or a separate document) shall include an easement for pedestrian and bicycle-riding purposes over the paved streets and sidewalks in favor of all students and their parents/supervisors traveling to and from schools. The easements shall restrict access to the time in which public schools are open for use by students (and 90 minutes before, and 90 minutes after the schools are open for use by students). At all other times, there shall be no such easement for pedestrian and bicycle access. No other facilities shall be used by the beneficiaries of the easement, such as, without limitation, common areas and recreational facilities; all common areas and recreational facilities and other facilities shall be totally for the benefit of the residents of the subject Property. The restrictive covenants shall set forth the procedures for assuring the ability to utilize the foregoing easement. 23. The recreational facilities shall include tennis courts, playground, pool, tot-lot, volleyball court, bicycle/jogging paths, outdoor recreational playfields and a clubhouse with a community meeting room which has no less than 1000 sq. ft. of meeting-room space. Other than normal Building Department review for the issuance of permits, the City shall have no architectural review of the clubhouse. 24. All easements shown on the Preliminary Subdivision Plan will be sized to meet City requirements and appropriately shown on the Final Subdivision Plan. The Final Subdivision Plan will also provide for 5' utility and drainage easements on all side lot lines, and 10' utility and drainage easements adjacent to all street rights-of-way on the platted lots. 25. Upon the construction of each section of West Groves Boulevard, shade trees will be planted at a maximum spacing of 50'. Along any walls, shrubs will be planted, such plantings to be at least 25% of the length of the section of wall. 26. a. At the time the Developer develops the initial phase of the single-family subdivision, the Developer shall construct, at a minimum, a stabilized road base for the portions of West Groves Boulevard (Phase I) and Park Drive leading from the termination of the initial phase of the single-family subdivision, to the community park (Tract A). The Developer may (but shall not he required to) construct other improvements (such as, without limitation, utility lines, walls, landscaping, and other development improvements) at the time of the development of the first phase. b. All screen walls, landscape buffers, entry and corner landscape improvements, and sidewalks along Tract W-1 (West Road Extension [Phase 1]) and along West Groves Boulevard, and in all common areas, shall be completed prior to the issuance of a certificate of completion for each corresponding phase. -27-006.218694.3 27. Developer shall take steps reasonably required to preserve existing trees which have a DBH of 8 or more inches (excluding citrus trees and "trash" trees) which are within the portions of the Property on which buffer walls and road rights-of-way and utilities facilities will be constructed. In that regard, buffer walls, roads, and utilities facilities shall be designed to incorporate those trees into the required landscape buffers as street trees. 28. The master grading plan for the subdivision shall be designed to preserve existing grades to the greatest extent possible on individual lots containing protected trees. The grading plan for each lot which contains protected trees shall also preserve existing trees to the extent that is reasonably practical to do so. 29. a. Subject to 29.(b) below, the Developer shall comply with all requirements of the City and other governmental entities with jurisdiction to protect the wetlands being preserved and to prevent any disturbance, siltation, or other construction below the natural wetland lines. Further, the areas below the natural wetland lines shall be roped off(and silt fences shall be installed) during construction activities immediately adjacent to the wetlands, in order to minimize disturbances of the wetlands during construction. b. The Developer agrees to implement the Conceptual Mitigation Plan set forth in the submission dated February 14, 2001, from Glatting, Jackson, et al, to the City of Ocoee, and its attachments. The Developer agrees to undertake the developer commitments set forth in the report. The Developer must obtain approval from the City to deviate therefrom. c. With respect to flood plains and wetlands, the Developer agrees as follows: i. There shall be no development in the 100-year flood plain. ii. It is acknowledged that the Developer will attempt to do a Letter of Map Amendment to modify the FEMA map for a portion of the property to be developed as Villages C-3/C-4 of the project. If the FEMA map is modified by applicable governmental agencies, then the FEMA map, as modified, shall control the subject development, and the Developer shall not develop in the 100-year flood plain as modified by the Letter of Map Amendment. However, if FEMA does not modify the current map, and portions of the approved Preliminary Subdivision Plan are determined to fall within the 100-year flood plain, Developer will submit to the City a modification of the current Preliminary Subdivision Plan wherein the Developer will remove any proposed development that may otherwise be reflected as being within the 100-year flood plain. iii. If the Developer obtains development permits from the St. Johns River Water Management District, which allow for a wetland enhancement program, then the Developer may develop in accordance with those permits, so long as the development is consistent with the Preliminary Subdivision Plan submitted to the City by the Developer. Without limiting 006.218694.3 -28 the foregoing, the Developer acknowledges that the City will accept the concept of having retention of stormwater in wetlands, but only if the wetlands are still defined as functional, enhanced wetlands in the post- development state. There may be exceptions to this standard at certain locations specifically approved as part of the Final Subdivision Plan. In the event the Developer does not obtain development permits from St. Johns River Water Management District for intrusion or enhancement of wetlands, then the Developer will submit to the City a modification of the current Preliminary Subdivision Plan wherein no intrusion or enhancement of wetlands is provided. iv. To the extent any wetlands located with the subject property have not been dedicated to the St. Johns Water Management District, the Developer agrees, at the request of the City, to dedicate such wetlands to the City for conservation, open space, or recreational purposes. 30. The subdivision plat for each lot shall provide that all drainage, utility, and maintenance easements on lots for single-family residential dwelling units, shall be for the benefit of the homeowners association and/or the City of Ocoee, but not for the general public. 31. The foundation for each single-family residential dwelling unit to be constructed on the Property shall have an elevation which exceeds the applicable 100-year flood elevation by a minimum of one (I) foot. 32. All access rights to the West Road Extension (Tracts W-1 and W-3) for all lots adjacent thereto shall be dedicated to the City. Access rights for all lots adjacent to West Groves Boulevard, from its intersection with West Road Extension (Tract W-1) to the intersection of Park Drive (Phase I), shall be dedicated to the West Groves Homeowners Association at the time of platting. 33. The Developer shall construct appropriate curb cuts to enable construction 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. Sidewalks abutting each platted lot shall he constructed at the time a house is constructed on the lot. When sidewalks are constructed on corner lots at certain locations, the sidewalks will be extended to the curb and the appropriate ramps will then be constructed. Sidewalks adjacent to common areas shall be constructed at the time of permanent construction of adjacent common areas. 34. No lot shall have thereon: (1) buildings which cover more than 35% of the square footage of the lot, except that buildings which cover up to 40% of the square footage of the lot may be constructed so long as the minimum air-conditioned building area of the building exceeds 1880 sq. ft.; and, (2) impervious surfaces which exceed 50% of the square footage of the lot. 006218694.3 -29 35. If any portion of Parcel R-3 is developed with improvements other than single-family homes, then the subdivision plan of such portion(s) of Parcel R-3 shall require a 25' landscape buffer (pavement setback) and a 50' building setback, from the adjacent single-family lots on Parcel A-1. 36. The boardwalk and pier into Lake Apopka shall be permitted through the appropriate State agencies and the City of Ocoee Building Department. 37. A street tree shall be provided in front of each single-family lot (2 street trees on corner lots, with one on each street), prior to the issuance of a certificate of occupancy for the house constructed on the lot. Each street tree shall be a minimum of 2" DBH and 10' tall at the time of planting. 38. Street lights will be installed by the Developer prior to Certificate of Completion at his expense, and the cost of operations will be assumed by the Developer in accordance with Ordinance No. 95-17. 39. No person shall undertake landclearing or the removal of any protected tree 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 a specimen or historic tree. 40. Nothing herein shall be construed to waive any provision of the Land Development Code except to the extent expressly set forth on the Waiver Table or explicitly set out on the Preliminary Subdivision Plan. 41. In order to accommodate the sanitary sewer system infrastructure that will be constructed with the initial phase of development, temporary utility easements over land located in future phases of development will he provided at the time the initial phase of development is platted. 42. If Parcels C-2 or R-3 are ever subdivided to into smaller parcels, they will follow the LDC subdivision guidelines in effect at that time, including the regulations described in Ordinance No. 99-23. 43. Within Area 5C4, where there are a large number of existing trees, there will be no grading or removal of trees done with the construction of the subdivision improvements on individual single-family lots with existing protected trees, unless approved by the City with the Final Subdivision Plan. Any grading or tree removal necessary for the house pads will be done with the building permit for the house. 44. The landscaped tract along the West Road Extension (Tract T) shall have trees planted every 30' and shrubs planted along at least 25% of the length of the wall on the outside of the wall. -30- 006218694.3 45. All single-family phases of this subdivision will be under a Master Homeowners Association, which shall own and be responsible for the maintenance of all common tracts and areas. Regulations regarding on-street and off-street parking, vehicular and boat trailer parking (and storage), maintenance of common facilities, assessment collection and management, will be incorporated into the recorded homeowners association documents. 46. All underground utilities shall comply with Ordinance No. 95-17, which requires pedestal-mounted utility boxes to be placed back off the street, no more than 5' forward of the front building setback line, on all residential lots which are less than 70' in width, where the lots abut the street right-of-way line. 47. Each phase of development shall stand on its own with respect to public services (sewer, water, stormwater management, access and other related services). Water and sewer utilities to be provided by Orange County Public Utilities, per executed Development Agreement. 48. Unless otherwise specifically agreed to by the City of Ocoee, the phasing shall be sequential as provided on Drawing 3.(a). 49. In the event the project proceeds with the West Groves Boulevard (Phase 4, Option A), the West Groves Boulevard (Phase 4, Option B) shall be incorporated into Tracts R-2 and R-5. 50. The right-in/right-out access points from CR 437 to Parcel R-3, as shown on Drawing 4, is anticipated to be a fully-operational entrance/exit for the site. However, when a site plan is presented for the parcel zoned R-3, the City will evaluate the circumstances and determine whether it needs to be fully operational, or if it can be for emergency access only. -31- 006.218694.3 EXHIBIT "C" WAIVERS CODE CODE STANDARD PROPOSED STANDARD JUSTIFICATION FOR WAIVER SECTION CITATION 6-10(J)(6) BLOCK LENGTH OVER 1,000 LOOPED ROAD OF 1650 LF CONFINED WITHIN SEPARATE VILLAGE FT. (BID) TABLE 5-2 35% MAXIMUM BUILDING 40% MAXIMUM BUILDING REQUIRES MINIMUM LIVING AREA SITE COVERAGE SITE COVERAGE TO EXCEED 1,880 S.F. 7-4(B) NO DEVELOPMENT WITHIN 25' INCURSION INTO WETLANDS AFFECTED EXISTING WETLAND OF WETLANDS FOR STORM WATER THAT ARE NOT FUNCTIONAL BUT MANAGEMENT WILL BE ENHANCED TO BECOME FUNCTIONAL -32- 006.218694.3 FOLEY & LARDNER ATTORNEYS Ai LAW CHICAGO POST OFFICE BOX 2193 SACRAMENTO DENVER ORLANDO. FLORIDA 32802-2193 SAN DIEGO JACKSONVILLE I I I NORTH ORANGE AVENUE. SURE I OOO SAN FRANCISCO LOS ANGELES ORLANDO. FLORIDA 3280I 2366 TALLAHASSEE MADISON TELEPHONE. (4071 423-7656 TAMPA MILWAUKEE FACSIMILE 1407) 645-1743 WASHINGTON. D.0 ORLANDO WEST PALM BEACH WHITE R 5 DIRECT LINE 407P44J245 EMAIL ADORESS CLIENT/MATTER NUMBER SCOOxsory C IOLEnAw.coM 0203//0533 May 29, 2001 VIA HAND DELIVERY Ms. Jean Grafton City Clerk City of Ocoee 150 N. Lakeshore Drive Ocoee, FL 34761 Re: Avanti/West Groves Development Agreement Dear Jean: Enclosed please find a copy of the Avanti/West Groves Development Agreement referenced in the staff report sent to you earlier today via e-mail by Paul Rosenthal. Please do not hesitate to contact me should you have any questions. Sincerely, S ott A. kso Ass ity Attorney Enclosures cc: Paul E. Rosenthal, Esq., City Attorney 006.207966.1 ESTABLISHED IB42 A MLMs[T o,GLOBLEi w.nI„TM„„OTTICT.!M ETR!IN,Exu..�..DIn TDt N, I .�M� .LOMOOM.S!NO..O.L.sOLM„O!M<N"s!!T�„«. Page 1 of I Lewis, Judie From: Henning,Judith L. [JHenning@foleylaw.com] Sent: Tuesday, May 29, 2001 11:48 AM To: 'Judie Lewis' Cc: 'Jean Grafton'; 'Caroline Alexander; Cookson, Scott A. Subject: Avanti/West Groves Development Agreement (Carolyn- Please print for Russ) Attached is our staff report for the City Commission Agenda Item on the above matter. Please have this initialed by Jim Gleason and delivered to Jean Grafton. The Development Agreement will be hand delivered to Jean Grafton. Please note that the last draft of May 23 has not been finally accepted by Howard Lefkowitz. PcutthE. Rosentha , Foley & Lardner-Orlando Office prosenthal @foleylaw.com Phone; 407-244-3248 5/29/01