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HomeMy WebLinkAboutItem #01 Fountains WestContact Name: Contact Number: tpe Center of Good Liv 0 AGENDA ITEM STAFF REPORT Meeting Date: July 11, 2007 Item # Antonio Fabre, AICP 407-905-3100/1019 Subject: Fountains West PUD Preliminary / Final Subdivision Plan Preliminary / Final Site Plan for Lot 6 Project # LS-2006-009 Commission District # 1 — Gary Hood ISSUE: Reviewed By: Department Director: City Manager: 'mod. J"', - Should the Honorable Mayor and City Commissioners approve the Preliminary/Final Subdivision Plan and Preliminary/Final Site Plan (Lot 6) for Fountains West PUD? BACKGROUND SUMMARY: Fountains West PUD property is located on the northeast corner of the intersection of West Road and Ocoee -Apopka Road. The property encompasses approximately 43.03 acres of land of which approximately 4.73 acres will be designated as wetland/conservation to be dedicated to the City. Additionally as part of the onsite wetland mitigation, 1.1 acre will be dedicated to the City as a Public Trail (Tract G). The subject property is currently undeveloped and sparsely covered with a small mixture of sand pine, scrub and laurel oak trees and other varieties of trees scattered around the property. Moreover, most of the property was a former citrus grove that is now cleared. The Future Land Use designation is Commercial, Low Density Residential, Light Industrial and Conservation/Floodplains. Existing land use to the north is a water treatment facility (the City of Winter Garden treatment plant), zoned A-1; to the east across Ocoee -Apopka Road is the Vineyards and Westyn Bay both of which are single-family residential subdivisions, zoned R1-AA; to the west is vacant treed land zoned 1-1; and to the southwest across West Road is vacant land zoned C-2 in the City limits and to the southeast is residential land zoned agricultural located on unincorporated Orange County. The City Commission reviewed and approved the PUD Land Use Plan for Fountains West as presented on December 19, 2006. The submitted Preliminary/Final Subdivision Plan and the Preliminary/Final Site Plan for Lot 6 are consistent with the approved PUD Land Use Plan and the conditions set forth on the PUD Development Agreement. DISCUSSION: The Preliminary/Final Subdivision Plan is proposed to be an eight (8) commercial lot subdivision of which one lot is designated as a supermarket shopping center (Lot 6-Publix Supermarket) and another as a large church facility (Lot 8-Living Waters Church). The permitted uses are indicated on a development matrix chart on sheet C-010 of the site plan. Essentially, lots 1 thru 3 were the most restricted due to the close proximity with the residential subdivision across the street. The proposed Subdivision Plan proposes four (4) outparcels along Ocoee -Apopka Road. The "Plans" also incorporates the Preliminary/Final Site Plan for Lot 6 (Publix Supermarket). The shopping center supermarket will be setback on an internal centralized location fronting on West Road. On -site water retention is proposed via a master stormwater pond (Tract B) for lots 1-7. Additionally, there will be a water feature with an environmental enhancement for the remnant wetland (Tract F) on the northeast corner of the newly created intersection of West Road and Ocoee -Apopka Road. The Fountains West project is proposed to preserve natural wetlands, provide for public trails, provide right-of-way dedication along Ocoee -Apopka Road, and enable realignment of West Road via a tri-party (City of Ocoee, Orange County, & Fountains West developers) development agreement. When the subdivision is completed, the intersection of West Road and Ocoee -Apopka Road will be realigned and improved with a traffic signal plus corresponding turn lanes. The detached West Road section will eventually be vacated and incorporated into adjoining parcels. This proposed roadway realignment and intersection improvements were identified in the City of Ocoee Comprehensive Plan adopted October 1, 2002. More specifically, the improvements were illustrated as part of the Roadway Improvement Master Plan for 2020 (Figure 11) in the Transportation Element of the Comprehensive Plan. The ultimate goal is to provide a new intersection that is properly aligned with the existing Ocoee Crown Point Parkway in order to facilitate traffic and reduce congestion to this area. Furthermore, the developer/owner is dedicating 30 feet wide of right-of-way (Tract D) along Ocoee -Apopka Road. This will result in a 120 feet wide right-of-way along the entire Ocoee -Apopka Road section adjacent to the site for any future roadway improvements. As shown on the plans, Road "A" will be dedicated to the City with corresponding roadway improvements and stormwater abatement. Left and right turn lanes will be provided at all site access points based upon the results of the traffic impact analysis. Water and sewer will be provided by Orange County. Reuse water will be eventually supplied by the City of Ocoee. Tract 1 is essentially a remnant of an original parent parcel of land for this project. Tract 1 will remain with its original 1-1 zoning but will be subject to the Conditions of Approval outlined on the Land Use Plan and Development Agreement. There was an issue with the coordination of the permanent realignment of West Road and the actual construction of the site permanent operational turnlanes. Staff and the Developer have agreed to resolve this issue by a mutually beneficial Development Agreement. The Development Agreement is included with the City Commission packet and should be approved together with the Plans. The agreement essentially allows for the City to design, permit and construct the "West Road Turnlanes", and in turn, the Developer will pay the City the lump sum of $200,000 dollars. DEVELOPMENT REVIEW COMMITTEE RECOMMENDATION: The Development Review Committee (DRC) reviewed the Fountains West PUD on June 28, 2007. There were minor technical issues to be addressed from the City Attorney and Engineering Department that were identified in written staff comments and presented verbally. All of the issues were discussed and all changes to the "Plans" were agreed upon. The applicant proposed some revision changes to the "West Road Turnlanes" Development Agreement. Staff and the developer compromised and collectively agreed upon some of the revision changes. After discussion was completed, the DRC voted unanimously to recommend approval of the Fountains West Preliminary/Final Subdivision Plan and Preliminary/Final Site Plan for Lot 6, subject to the changes discussed being made to the plans (date stamped June 13, 2007) and approval of the "West Road Turnlanes" Development Agreement. PLANNING & ZONING COMMISSION RECOMMENDATION: The proposed Preliminary/Final Subdivision Plan and Preliminary/Final Site Plan (Lot 6) for Fountains West PUD will be reviewed by the Planning and Zoning Commission on July 10, 2007. Staff will incorporate the P&Z formal recommendation into Staff Presentation for this scheduled City Commission Public Hearing. STAFF RECOMMENDATION: Based on the recommendation of the DRC and Planning & Zoning Commission, Staff recommends that the Mayor and City Commissioners approve the Preliminary/Final Subdivision Plan and Preliminary/Final Site Plan (Lot 6) for Fountains West PUD as date stamped received by the City on June 13, 2007, subject to resolving the last remaining issues addressed in the attached City Attorney's review memorandum and the Engineering Department review memorandum prior to the Pre -Construction Meeting for the project; and further, subject to approval of the "West Road Turnlanes" Development Agreement. Attachments: Location Map; Future Land Use Map; Zoning Map; Aerial Location Map; Engineering Department's Memorandum dated June 18, 2007; City Attorney's Memorandum dated June 22, 2007; Draft "West Road Turnlanes" Development Agreement; Preliminary/Final Subdivision Plan and Preliminary/Final Site Plan for Lot 6 date -stamped June 13, 2007. Financial Impact: None. Type of Item: (please mark with an x') X Public Hearing For Clerk's Dept Use: Ordinance First Reading Consent Agenda Ordinance Second Reading X Public Hearing Resolution Regular Agenda X Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. X N/A Reviewed by ( ) N/A Fountains West Location Map N diet- Mayor S. Scott Vandergrift City Manager Robert Frank Commissioners Gary Hood, District 1 Scott Anderson, District 2 Rusty Johnson, District 3 Joel F. Keller, District 4 Fountains West — Preliminary/Final Subdivision Review Large Scale Site Plan — 4rd Staff Review Engineering Department Comments June 18, 2007 The following are the results of your fourth submittal for the above referenced project. If you have any questions pertaining to the requested information, please contact our office. L-16. Resolved 17. (Repeat Comment) Pond Sections A -A and B-B indicate slopes steeper than 5:1. The City of Ocoee Land Development Code does not allow slopes steeper than 5:1. Also indicate the slope from the top of bank to the retaining wall. A 10 foot maintenance berm around the pond is required. A 5:1 side slope is required in the pond area as well as leading to the pond maintenance berm. If this is not possible the use of structured walls and/or railing may be required for safety. Please indicate how the slopes will be stabilized with a detail. There was also discussion in the TSRC that indicated a geomat would be used to stabilize the 2:1 slopes. Be advised that sheet C301 was missing in the latest submitted set. 18. (Repeat Comment) Please add the City of Ocoee water details to the plan set. These details will apply to the reclaimed water system. Contact the City of Ocoee Engineering Department to receive the City Details in AutoCAD format. Please contact Ryan Howard in the Engineering Department for the latest City details to be emailed in CAD format. Remove the cul-de-sac and the water main thrust collar details. Add the restraint table and locating wire details. Modify the PVC pipe locating detail to reference all pipe instead of PVC pipe. This includes changing the title. 19.-25. Resolved 26. (Repeat Comment) A copy of SJRWMD, Orange County Utilities, and Orange County Public Works permits will be required before final approval will be issued. A meeting with Orange County on June 81h indicated that the current turn lane on Ocoee -Apopka Road as shown on the plans does not meet the Orange County Public Works requirements. Orange County stated that the Ocoee -Apopka Road turn lane is required to have a 200 foot que with an 85 foot taper section. 27.-30. Resolved City of Ocoee • 150 N Lakeshore Drive • Ocoee, Florida 34761 Phone: (407) 905-3100 • Fax: (407) 656-8504 • www.ci.ocoee.fl.us Fountains West June 18, 2007 Page 2 of 2 The following were new comments in response to plan changes within the May 9, 2007 comment package: 1.-7. Resolved The following were new comments in response to plan changes within the June 1, 2007 comment package 1.-8. Resolved Engineering Department Ryan P. Howard, E.I. Engineer Il :FOLEY FOLEY & LARDNER LLP ATTORNEYS AT LAW MEMORANDUM CLIENT -MATTER NUMBER 020377-0814 TO: Sherry Seaver, Development Review Coordinator FROM: Paul E. Rosenthal, Esq., City Attorney DATE: June 22, 2007 RE: Fountains West Preliminary/Final Subdivision Plan; Preliminary/Final Site Plan for Lot 6 Project No. LS-2006-009 (Fourth Review) In connection with the above -referenced project, we have reviewed the following documents: 1. Response letter from VHB dated June 12, 2007; 2. Owner's Affidavit signed by Thomas Crociata, First Vice President of SunTrust Bank; 3. Draft Conservation Easement in favor of SJRWMD (the "SJRWMD Conservation Easement"); 4. Fountain West Lot 7 Peak Runoff Discharge Calculations; 5. Recorded Master Easement Agreement (Book 8548, Page 2643) (the "Recorded Master Easement Agreement"); 6. Recorded Declaration of Covenants, Operations & Reciprocal Easements (Book 8574, Page 0127) (the "Recorded Declaration"); 7. Preliminary/Final Subdivision Plan for Fountains West PUD and Preliminary/Final Site Plan for Lot 6 prepared by VHB (the "Plan"). This memorandum supersedes our previous memoranda dated January 31, 2007, April 24, 2007 and May 31, 2007. Based upon our review of the documents noted above and pursuant to the Land Development Code, we have the following comments: ORLA_448037.2 FOLEY FOLEY & LARDNER LLP I. COMMENTS DIRECTED TO CITY STAFF The following comments are addressed to and/or request direction from City Staff and, unless otherwise noted, do not require any response from the Applicant. These comments should be discussed as TSRC so that the Applicant and City Attorney are fully advised regarding City Staffs direction. 1. None. II. REPEAT COMMENTS The following comments were included in the City Attorney's prior memoranda regarding the Plan, however, they were not fully addressed as part of the Applicant's current submittal. The following comments may also relate to prior comments provided by other City Departments that were not fully addressed as part of the Applicant's current submittal. 2. [Revised Comment] COA No. 29 on Sheet C-009 of the Plan requires that the Developer provide a draft Master Easement Agreement to the City for review with the Plan. We consider the previous submittals to satisfy the requirement for a draft document and have provided our comments with respect thereto. This will need to be finalized and agreed upon prior to Plat approval. 3. [Revised Comment]. COA 67 is inconsistent with our previous comment. Revise the first sentence by deleting the words "mutually" and "and the Developer" so that the first sentence will read as follows: "A Master Easement Agreement acceptable to the City will be recorded in connection with the platting of the Property." 4. [Revised Comment]. COA 68 is inconsistent with our previous comment. Revise the first sentence by adding the word "northern" so that the sentence will read as follows: "The Developer will design, engineer, permit and construct a 12" reuse line extension from the northern boundary of the property to ....." 5. [Revised Comment] Per the response letter, please provide updated title prior to the City Commission meeting. 6. [Revised Comment] An Agreement will be required addressing the design, permitting and construction of the West Road turnlane improvements. This Agreement must be approved contemporaneous with the P/FSP approval. The outline for the Agreement was agreed to by the City and the Developer in a phone conference on June 21, 2007. ORLA 448037.2 r FOLEY FOLEY & LARDNER LLP III. NEW COMMENTS IN RESPONSE TO THIRD SUBMITTAL The following comments are based on changes made to the Plan since the Applicant's first submittal or relate to new information or documents that have been provided since Applicant's prior submittals. 7. None Please do not hesitate to contact me should you have any questions. ORLA_448037.2 THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Paul E. Rosenthal, Esq. FOLEY & LARDNER LLP 111 North Orange Avenue, Suite 1800 Orlando, FL 32802 (407) 423-7656 RETURN TO: Beth Eikenberry, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407) 656-2322 AGREEMENT (Fountains West Turn Lanes) For Recording Purposes Only THIS AGREEMENT (this "Agreement") is made and entered into as of the — day of , 2007 by and between OCOE, LLC, a Florida limited liability company, whose mailing address is 33 S.E. 4"' Street, Suite 100, Boca Raton, FL 33432 ("Developer") and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761, Attention: City Manager (the "City"). WITNESSETH: WHEREAS, 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 (the "Developer's Property"); WHEREAS, Developer intends to develop the Developer's Property as a commercial subdivision known as "Fountains West" (the "Developer's Project") consistent with that certain Preliminary/Final Subdivision Plan for Fountains West PUD and Preliminary/Final Site Plan for Lot 6 (the "FSP") prepared by Vanasse Hangen Brustlin, Inc ("VHB") and date stamped received by the City on , 2007; WHEREAS, Developer, the City and Orange County, Florida, a charter county and political subdivision of the State of Florida (the "County"), entered into that certain Second Corrected West Road Realignment Agreement (the "West Road Realignment Agreement"), recorded January 8, 2007 in Official Records Book 9053, Page 559, Public Records of Orange County, Florida, which addresses matters related to the realignment of West Road; WHEREAS, the West Road Realignment Agreement contemplated that the City, subject to being reimbursed by the County, would design, permit and construct a temporary ORLA 482283.1 realignment of West Road (the "Temporary Realignment") and that, at a later date, the County would design, permit and construct, or cause to be designed, permitted and constructed, a permanent realignment of West Road (the "Permanent Realignment"); WHEREAS, the County has indicated that it intends to proceed with the construction of Permanent Realignment (the "County West Road Realignment Project") in lieu of the City's construction of the Temporary Realignment; WHEREAS, the FSP contemplates the construction by Developer of certain turn lanes to provide access between the Project and West Road (the "West Road Turn Lanes"), which were designed and engineered based on the Temporary Realignment, and not the Permanent Realignment; and WHEREAS, due to the County's construction of the Permanent Realignment in lieu of the Temporary Realignment, the City has agreed that, pursuant to the terms of this Agreement, Developer will not be required to construct the West Road Turn Lanes. NOW, THEREFORE, in consideration of the premises and other good and valuable considerations exchanged between the parties hereto, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Section 1. Recitals. The above recitals are true and correct and incorporated herein by this reference. Section 2. Turn Lane Improvements. A. The City agrees, at the City's expense, to design, permit and construct the West Road Turn Lanes. At the option of the City, turn lane construction may occur after completion of County West Road Realignment Project or be incorporated into the County West Road Realignment Project. B. Developer will pay the City the sum of TWO HUNDRED THOUSAND AND N0/100 DOLLARS ($200,000.00) by the earlier of (i) the holding of the preconstruction meeting for the subdivision improvements, or (ii) 10 days after the FSP is approved by the Ocoee City Commission. The payment constitutes the Developer contribution towards the West Road Turn Lanes and is intended to satisfy a portion of Developer's offsite improvement obligations of the FSP, and as set forth in that certain Development Agreement (Fountains West), recorded January 9, 2007 in Official Records Book 9054, Page 792, Public Records of Orange County, Florida. No road impact fee credits are provided in connection with this contribution. C. Developer will, at Developer's expense, cause VHB to certify to the City that the design for the Developer's Project as shown on the FSP meets the grades and elevations proposed by the County for the West Road realignment based on the Clarcona- Ocoee Road 100% Submittal, dated September 7, 2001, County Project #CIP 3038 West, as prepared by Inwood Consulting Engineers (the "County's West Road Plans"). The City ORLA_482283.1 -2- assumes no obligations with respect thereto in the event of a conflict between the FSP and the County's West Road Plans. Subject to receipt of such certification, Developer will not be required to modify the FSP sheets dealing with the West Road Turn Lanes. D. Developer is required to construct all improvements adjacent to West Road which are within the boundaries of the Developer's Property as shown on the FSP. E. Developer is required to construct the sidewalks located within West Road as shown on the FSP and to obtain the necessary permits from the County to do so. Developer will need to coordinate timing of such construction with the County and its contractor. These sidewalks are not part of the West Road Turn Lanes to be constructed by the City. The City has determined that there is no conflict between the sidewalk plans shown on the FSP and the County's West Road Plans. If Developer gets the County to agree to relocate and construct, at no cost to the City, the sidewalks that the County has proposed from the location that the County currently depicts on the County's West Road Plans, to the location preferred by the City, for which the Developer is obligated to construct, then Developer will not be required to construct such sidewalks. F. Developer will not be required to construct the West Road Turn Lanes shown on FSP (either the temporary or permanent turn lanes); provided, however, that Developer will be required to design and construct its on -site improvements so as to meet the appropriate elevations shown in the County's West Road Plans. G. Given the construction of the Permanent Realignment by the County and the West Road Turn Lanes by the City, the completion of such improvements will not be a condition to the issuance by the City of building permits, certificates of completion or certificates of occupancy for the Developer's Project. H. The City has elected not to design, permit, and construct the Temporary Realignment as set forth in the West Road Realignment Agreement. The City and Developer acknowledge that the Permanent Realignment Improvements will be constructed in lieu thereof. I. In the event of any conflict between the FSP and this Agreement, then this Agreement shall control. J. Developer responsibility for improvements within Ocoee -Apopka Road per the FSP are not affected by this Agreement. Section 3. 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. ORLA_482283.1 -3- Section 4. Covenant Running with the Land. This Agreement shall run with the Developer's 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 Developer's Property or any portion thereof. Section 5. Recordation of Agreement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at Developer's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of Developer, execute and deliver letters affirming the status of this Agreement. Section 6. 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 7. 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 8. Agreement; Amendment. This Agreement constitutes the entire agreement between the parties, and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof. Amendments to and waivers of the provisions of this Agreement shall be made by the parties only in writing by formal amendment. Section 9. 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 10. Specific Performance. Both the City and Developer shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 11. Attorneys' Fees. In the event that either party finds it necessary to commence an action against the other party to enforce any provision of this Agreement or because of a breach by the other party of any terms hereof, the prevailing party shall be entitled to recover from the other party its reasonable attorneys' fees, legal assistants' fees and costs incurred in connection therewith, at both trial and appellate levels, including bankruptcy proceedings, without regard to whether any legal proceedings are commenced or whether or not such action is prosecuted to judgment. Section 12. 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 13. 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. ORLA_482283.1 -4- Section 14. 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 15. Effective Date. The Effective Date of this Agreement shall be the day and year first above written. (REMAINDER OF PAGE INTENTIONALLY LEFT BLANKI ORLA_482283.1 -5- I In c v� Y'o J OJ Y � al Q a J d N C� Q N O N w O 7 N w E ry c o a E > o 03 o a of a o O E o .a ~ a Q o v v Y o OLEO o a Y E p C E Y v ` a_Ci V C U v U O E v Q (U _O E E E v M 3E. �Z O E 2 v 3 � w E5 O` �OO9 O O Z a> 00 07 co SON 4- 3 r!Map+ O .--• -- O U. o -0 y- o? co co co 00 vNC)b �vvpp .� ao wwoo� 3 o nO rl wZ0C)�.,v55Cn w s 3 0 Q x u. cd Q � m C N F �e Attached Items were distributed at the Commission Meeting - They were not part of the original agenda packet. July 11, 2007 Honorable Mayor and City Commissioners Page 2 Another resident had several concerns about the project turnlanes and the proposed accessory uses for the Church (such as a Daycare) and how it will affect the traffic patterns. A concern about site lighting was also mentioned. Staff assured that the site lighting will meet our adopted Code which promotes no spillover lighting, glare or night -sky pollution onto adjacent tracts. The final concern that was expressed was what was happening to Progress Energy plans on locating a substation on the south side of West Road. After finishing its deliberations, the Planning & Zoning Commission voted unanimously (8-0) (one member abstained from voting) to recommend approval of the Fountains West Preliminary/Final Subdivision Plan and Preliminary/Final Site Plan for Lot 6 as date stamped received by the City on June 13, 2007, subject to resolving the last remaining issues addressed in the attached City Attorney's review memorandum and the Engineering Department review memorandum prior to the Pre -Construction Meeting for the project; and further, subject to approval of the "West Road Turnlanes" Development Agreement. THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Paul E. Rosenthal, Esq. FOLEY & LARDNER LLP 111 North Orange Avenue, Suite 1800 Orlando, FL 32802 (407) 423-7656 RETURN TO: Beth Eikenberry, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407) 656-2322 AGREEMENT (Fountains West Turn Lanes) For Recording Purposes Only THIS AGREEMENT (this "Agreement") is made and entered into as of the — day of , 2007 by and between OCOE, LLC, a Florida limited liability company, whose mailing address is 33 S.E. 4`b Street, Suite 100, Boca Raton, FL 33432 ("Developer") and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761, Attention: City Manager (the "City"). WITNESSETH: WHEREAS, 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 (the "Developer's Property"); WHEREAS, Developer intends to develop the Developer's Property as a commercial subdivision known as "Fountains West" (the "Developer's Project") consistent with that certain Preliminary/Final Subdivision Plan for Fountains West PUD and Preliminary/Final Site Plan for Lot 6 (the "FSP") prepared by Vanasse Hangen Brustlin, Inc ("VHB") and date stamped received by the City on , 2007; WHEREAS, Developer, the City and Orange County, Florida, a charter county and political subdivision of the State of Florida (the "County"), entered into that certain Second Corrected West Road Realignment Agreement (the "West Road Realignment Agreement"), recorded January 8, 2007 in Official Records Book 9053, Page 559, Public Records of Orange County, Florida, which addresses matters related to the realignment of West Road; WHEREAS, the West Road Realignment Agreement contemplated that the City, subject to being reimbursed by the County, would design, permit and construct a temporary ORLA_482283.1 realignment of West Road (the "Temporary Realignment") and that, at a later date, the County would design, permit and construct, or cause to be designed, permitted and constructed, a permanent realignment of West Road (the "Permanent Realignment"); WHEREAS, the County has indicated that it intends to proceed with the construction of Permanent Realignment (the "County West Road Realignment Project") in lieu of the City's construction of the Temporary Realignment; WHEREAS, the FSP contemplates the construction by Developer of certain turn lanes to provide access between the Project and West Road (the "West Road Turn Lanes"), which were designed and engineered based on the Temporary Realignment, and not the Permanent Realignment; and WHEREAS, due to the County's construction of the Permanent Realignment in lieu of the Temporary Realignment, the City has agreed that, pursuant to the terms of this Agreement, Developer will not be required to construct the West Road Turn Lanes. NOW, THEREFORE, in consideration of the premises and other good and valuable considerations exchanged between the parties hereto, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Section 1. Recitals. The above recitals are true and correct and incorporated herein by this reference. Section 2. Turn Lane Improvements. A. The City agrees, at the City's expense, to design, permit and construct the West Road Turn Lanes. At the option of the City, turn lane construction may occur after completion of County West Road Realignment Project or be incorporated into the County West Road Realignment Project. B. Developer will pay the City the sum of TWO HUNDRED THOUSAND AND N0/100 DOLLARS ($200,000.00) by the earlier of (i) the holding of the preconstruction meeting for the subdivision improvements, or (ii) 10 days after the FSP is approved by the Ocoee City Commission. The payment constitutes the Developer contribution towards the West Road Turn Lanes and is intended to satisfy a portion of Developer's offsite improvement obligations of the FSP, and as set forth in that certain Development Agreement (Fountains West), recorded January 9, 2007 in Official Records Book 9054, Page 792, Public Records of Orange County, Florida. No road impact fee credits are provided in connection with this contribution. C. Developer will, at Developer's expense, cause VHB to certify to the City that the design for the Developer's Project as shown on the FSP meets the grades and elevations proposed by the County for the West Road realignment based on the Clarcona- Ocoee Road 100% Submittal, dated September 7, 2001, County Project #CIP 3038 West, as prepared by Inwood Consulting Engineers (the "County's West Road Plans"). The City ORLA_482283.1 -2- assumes no obligations with respect thereto in the event of a conflict between the FSP and the County's West Road Plans. Subject to receipt of such certification, Developer will not be required to modify the FSP sheets dealing with the West Road Turn Lanes. D. Developer is required to construct all improvements adjacent to West Road which are within the boundaries of the Developer's Property as shown on the FSP. E. Developer is required to construct the sidewalks located within West Road as shown on the FSP and to obtain the necessary permits from the County to do so. Developer will need to coordinate timing of such construction with the County and its contractor. These sidewalks are not part of the West Road Turn Lanes to be constructed by the City. The City has determined that there is no conflict between the sidewalk plans shown on the FSP and the County's West Road Plans. If Developer gets the County to agree to relocate and construct, at no cost to the City, the sidewalks that the County has proposed from the location that the County currently depicts on the County's West Road Plans, to the location preferred by the City, for which the Developer is obligated to construct, then Developer will not be required to construct such sidewalks. F. Developer will not be required to construct the West Road Turn Lanes shown on FSP (either the temporary or permanent turn lanes); provided, however, that Developer will be required to design and construct its on -site improvements so as to meet the appropriate elevations shown in the County's West Road Plans. G. Given the construction of the Permanent Realignment by the County and the West Road Turn Lanes by the City, the completion of such improvements will not be a condition to the issuance by the City of building permits, certificates of completion or certificates of occupancy for the Developer's Project. H. The City has elected not to design, permit, and construct the Temporary Realignment as set forth in the West Road Realignment Agreement. The City and Developer acknowledge that the Permanent Realignment Improvements will be constructed in lieu thereof. I. In the event of any conflict between the FSP and this Agreement, then this Agreement shall control. J. Developer responsibility for improvements within Ocoee -Apopka Road per the FSP are not affected by this Agreement. Section 3. 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 parry 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. ORLA_482283.1 -3- Section 4. Covenant Running with the Land. This Agreement shall run with the Developer's 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 Developer's Property or any portion thereof. Section 5. Recordation of Agreement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at Developer's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of Developer, execute and deliver letters affirming the status of this Agreement. Section 6. 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 7. 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 8. Agreement; Amendment. This Agreement constitutes the entire agreement between the parties, and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof. Amendments to and waivers of the provisions of this Agreement shall be made by the parties only in writing by formal amendment. Section 9. 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 10. Specific Performance. Both the City and Developer shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 11. Attorneys' Fees. In the event that either party finds it necessary to commence an action against the other party to enforce any provision of this Agreement or because of a breach by the other party of any terms hereof, the prevailing party shall be entitled to recover from the other party its reasonable attorneys' fees, legal assistants' fees and costs incurred in connection therewith, at both trial and appellate levels, including bankruptcy proceedings, without regard to whether any legal proceedings are commenced or whether or not such action is prosecuted to judgment. Section 12. 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 13. 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. ORLA_482283.1 -4- Section 14. 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 15. Effective Date. The Effective Date of this Agreement shall be the day and year first above written. /REMAINDER OF PAGE INTENTIONALLY LEFT BLANK? ORLA_482283.1 -5- IN WITNESS WHEREOF, 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. Signed, sealed and delivered in the DEVELOPER: presence of: OCOE, LLC, a Florida limited liability company Print N Print N STATE OF FLORIDA COUNTY OF MO. Name: Its: 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 of OCOE, LLC, a Florida limited liability company, who is [,] is personally known to me or [ ] produced as identification, and that he/she acknowledged executing the same in the presence of two subscribing witnesses on behalf of said company, 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 , 2007. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if not legible on seat): My Commission Expires (if not legible on seal): ORL.A_482283.1 -6- Signed, sealed and delivered in the presence of: Print Name: Print Name: FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of , 2007. FOLEY & LARDNER LLP : City Attorney STATE OF FLORIDA COUNTY OF ORANGE CITY: CITY OF OCOEE, FLORIDA LN S. Scott Vandergrift, Mayor Attest: Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2007 UNDER AGENDA ITEM NO 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 BETH EIKENBERRY, 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 , 2007. 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): ORLA_482283.1 -7- EXHIBIT "A" (The "Property") jSee attached sheetl ORLA_482283.1 -9- IN WITNESS WHEREOF, 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. Signed, sealed and delivered in the presence of: DEVELOPER: OCOE, LLC, a Florida limited liability company Print Name Name: Its: Print Name STATE OF FLORIDA 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 of OCOE, LLC, a Florida limited liability company, who is [_] is personally known to me or [_] produced as identification, and that he/she acknowledged executing the same in the presence of two subscribing witnesses on behalf of said company, 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 92007. 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): ORLA 482283.1 -6- Signed, sealed and delivered in the presence of: Print Name: Print Name: FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of , 2007. FOLEY & LARDNER LLP LN City Attorney STATE OF FLORIDA COUNTY OF ORANGE CITY: CITY OF OCOEE, FLORIDA S. Scott Vandergrift, Mayor Attest: Beth Eikenberry, City Clerk (SEAL) APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON , 2007 UNDER AGENDA ITEM NO 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 BETH EIKENBERRY, 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 32007. 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): ORLA 482283.1 -7- [INSERT APPLICABLE JOINDERSI ORLA 482283.1 -$- EXHIBIT "A" (The "Property") (See attached sheetl ORLA 482283.1 -9-