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HomeMy WebLinkAboutItem #19 Fountains at Highland Park center of GOOd LI .'~ ~O. AGENDA ITEM STAFF REPORT Meeting Date: September 15, 2009 i9 Item # Contact Name: Contact Number: Antonio Fabre, AICP 407 -905-3100/1019 Reviewed By: Department Director: City Manager: ~ Subject: Fountains at Highland Park (AKA: Fountains at Tivoli Place) Development Agreement & Billboard Relocation and Reconstruction Agreement Commission District # 3 - Rusty Johnson Backaround Summary: On November 18, 2008, the City Commission approved a PUD/Rezoning, Land Use Plan and Preliminary Site Plan for the Fountains at Highland Park (AKA: Fountains at Tivoli Place) project. To accommodate this project and reduce the number of billboards on the Turnpike the Developer has agreed to replace two (2) existing multi-pole billboards with one (1) single monopole billboard with up to two sign faces with at least one (1) face using LED (light emitting diode) or any other similar technology. Pursuant to Section 70.20, Fla. Stat., the City may not require the removal of the Existing Billboards as a condition of development approval. However, Section 70.20, Fla. Stat., authorizes a municipality to enter into a "Relocation and Reconstruction Agreement" on whatever terms are agreeable to the sign owner and the municipality. Accordingly, a "Billboard Relocation and Reconstruction Agreement" is presented in connection with the Fountains at Highland Park DA. Copies of the "Development Agreement for Fountains at Highland Park" and the "Billboard Relocation and Reconstruction Agreement" are included in your packet for review, consideration and final authorization. There is one noteworthy modification to the agreement that needs to be mentioned in this report. On November 18, 2008, the City Commission negotiated face time on the new LED billboards with the agreement that the City would receive one (1) guaranteed cycle in a standard rotation, on both sides of the billboard structure, for each day of the year with the copy (artwork) provided by the City of Ocoee. In other words, the City would receive twenty-six, two (2) week increments of regular new LED billboard face time, but would be responsible for the cost of revising the copy face. It is estimated from Clear Channel based on com parables that this cost could be between $35,000 and $50,000 annually to the City for the graphic copy revisions. The developer has proposed revisions at no cost to the City that would include five (5) two (2) week increments and unlimited face time in the event of emergencies. Accordingly, since there is a provision in the agreement that one side of the new billboard can be static, this would only be applicable to LED faces. Staff recommends approval to this modification as presented. Issue: Should the City Commission approve the "Development Agreement for the Fountains at Highland Park" with corresponding "Billboard Relocation and Reconstruction" Agreement? Recommendations: Staff recommends that the Mayor and City Commissioners approve the Development Agreement for the Fountains at Highland Park (AKA: Fountains at Tivoli Place) with corresponding "Billboard Relocation and Reconstruction" Agreement. Attachments: - Development Agreement for the Fountains at Highland Park - Billboard Relocation and Reconstruction Agreement Financial Impact: None. Tvpe of Item: (please mark with an "x') Public Hearing Ordinance First Reading Ordinance Second Reading Resolution X Commission Approval Discussion & Direction For Clerk's Deot Use: Consent Agenda Public Hearing _ Regular Agenda Original DocumenUContract Attached for Execution by City Clerk Original DocumenUContract Held by Department for Execution Reviewed by City Attorney Reviewed by Finance Dept. Reviewed by ( ) N/A X N/A N/A THIS INSTRUMENT PREPARED BV AND SHOULD BE RETURNED TO: PREPARED BV: Paul Rosenthal, Esq. FOLEY & LARDNER LLP III North Orange Avenue, Suite 1800 Post OUice Box 2193 Orlando, FL 32802-2193 (407) 423-7656 RETURN TO: Beth Eikenberry, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407) 656-2322 For Recording Purposes Only BILLBOARD RELOCATION AND RECONSTRUCTION AGREEMENT This Billboard Relocation and Reconstruction Agreement (the "Agreement") is made and entered into as of the 18th day of November, 2008, by and between the City of Ocoee, a Florida municipal corporation with a principal address of 150 North Lakeshore Drive, Ocoee, Florida 34761 (the "City"), Dempsey Boyd, an individual whose mailing address is 3275 Highway 30, Clayton, Alabama 36016 (the "Property Owner"), and Clear Channel Outdoor, Inc., a Delaware corporation authorized to do business in the State of Florida with a local office address of 5333 Old Winter Garden Road, Orlando, Florida 32811 ("Clear Channel"). WITNESSETH: WHEREAS, Property Owner is the owner of the following described property, which property is immediately adjacent to the Florida Turnpike: THE SW 1/4 OF THE NE 1/4 OF SECTION 30, TOWNSHIP 22 SOUTH, RANGE 28 EAST, LYING SOUTH OF TURNPIKE RIGHT OF WAY, LESS LIMITED ACCESS RIGHT OF WAY ON THE WEST, ORANGE COUNTY, FLORIDA, TOGETHER WITH: VACATED ROAD RIGHT OF WAY ON THE SOUTH AND LANDS PER AGREEMENT ORB. 5732, PG. 3468 037725,000056,102860140.6 ORLA_1408129.2 and which property is also legally described as: Commence at the southwest corner of the northwest v.. of Section 30, Township 22 South, Range 28 East; thence N89031 '26"E along the south line of the north y" of said Section 30 3224.20 feet; thence NOooOO'OO"E, 70.00 feet to the north right of way line of Tomyn Road and the Point of Beginning; thence continue NOooOO'OO"E, 662.54 feet to a point on the south right of way line of the Florida Turnpike; thence N89040'08"E along said south right of way line, 339.93 feet to a point of curvature of a curve concave to the south; thence run easterly along said curve having a radius of 4495.60 feet, a delta of 04059'50" an arc distance of 392.10 feet to a point on the west line of the southeast 14, of the northeast v.. said Section 30; thence SOooI9'41"E along said west line 713.58 feet to a point on said south line north y" Section 30; thence S89031'26"W along said south line 285.35 feet; thence SOo028'34"E, 106.79 feet to said northerly right of way line of Tomyn Road and a curve concave to the southwest; thence run northwesterly along said curve having a radius of 750.00 feet, a delta of 08006'26", a chord bearing of N64024'56"W an arc distance of 106.12 feet; thence continue along said right of way line N68028'09"W, 80.62 feet; thence N65043'20"W, 143.29 feet; thence N72030'33"W, 103.35 feet to a point of curvature of a curve concave to the southwest; thence run westerly along said curve having a radius of 166.48 feet, a delta of 17058'01" an arc distance of 52.21 feet to the Point of Beginning. (hereafter referred to as the "Property"); and, WHEREAS, Clear Channel is the owner of two existing, multi-pole billboards currently located on the Property (the "Existing Billboards"); and, WHEREAS, pursuant to the petition of the Property Owner, on November 18, 2008 the Ocoee City Commission approved Ordinance No. 2008-019 (the "PUD Ordinance") rezoning the Property as "PUD" (Planned Unit Development) under the Ocoee Land Development Code and also approved the Property Owner's PUD Land Use Plan and Preliminary PlanlPreliminary Site Plan as more fully described in the Development Agreement (as hereinafter defined); and, WHEREAS, in connection with the rezoning of the Property and the approval of the Land Use Plan, the City and Property Owner have entered into a certain Development Agreement (Fountains at Highland Park) dated as of November 18, 2008 (the "Development Agreement"); and, 037725,000056,102860140.6 ORLA_1408129.2 2 WHEREAS, Section 70.20, Fla. Stat., authorizes a municipality to enter into a "relocation and reconstruction agreement" on such terms as are agreeable to the sign owner and the municipality; and, WHEREAS, during the rezoning process Clear Channel proposed to remove the Existing Billboards on the Property and replace them with a single monopole billboard with up to two sign faces with LED (light emitting diode) or similar technology, or such other advanced technology as may from time to time be approved by the City, and with one sign face facing northbound traffic and one facing southbound traffic on the Florida Turnpike (the "New Billboard"); and, WHEREAS, in the absence of the City, the Property Owner, and Clear Channel entering into a relocation and reconstruction agreement under Section 70.20, Fla. Stat., the New Billboard would be prohibited by the City's Land Development Code; and, WHEREAS, subject to the terms, conditions and limitations set forth herein, the City hereby approves the removal of the Existing Billboards and their replacement with the New Billboard; and, WHEREAS, Clear Channel has voluntarily agreed to remove the two Existing Billboards and replace them with the New Billboard, subject to certain terms and conditions; and, WHEREAS, the Property Owner, the City and Clear Channel desire to document the terms and conditions oftheir agreement. NOW THEREFORE, in consideration of the premises and other good and valuable consideration exchanged between the parties hereto, the receipt and sufficiency of which IS hereby acknowledged, the parties agree as follows: 1. Recitals. The above recitals are true and correct and are incorporated herein by this reference. 2. Authority to Enter Agreement. Clear Channel warrants that it is the owner of the two existing multi-pole billboard signs that are the subject of this Agreement, is a proper party to this Agreement and that the undersigned officer of Clear Channel is fully authorized to execute this Agreement on behalf of Clear Channel. 3. Removal of Existing Billboards and Construction of New Billboard. In connection with the development of the Property pursuant to the Land Use Plan, the Property Owner and Clear Channel agree to remove the Existing Billboards on or before the 15th day after 037725,000056,102860140.6 ORLA_1408129.2 3 ~. I I the date on which the City gives notice to Clear Channel that the Property Owner has been issued an infrastructure permit (or other applicable site development permit) for any portion of Phase 1 as shown on the approved Land Use Plan. The New Billboard will be constructed in the same location as the easternmost of the Existing Billboards; provided, however, that notwithstanding anything contained herein to the contrary, the New Billboard will not be constructed prior to the time that the Property Owner pulls an infrastructure permit (or other applicable site development permit) for any portion of Phase I as shown on the approved Land Use Plan. If, through no fault of the City, the Property Owner and/or Clear Channel has not commenced construction of the New Billboard within five (5) years from the date on which the City gives notice to Clear Channel that the Property Owner has been issued an infrastructure permit (or other applicable site development permit) for any portion of Phase 1 as shown on the approved Land Use Plan, then Property Owner and Clear Channel shall forfeit the right to construct the New Billboard. The provisions of the Section shall control in the event of any conflict with the lease between Clear Channel and the Property Owner. 4. Design of New Billboard. The size of the sign faces of the New Billboard and the height of the New Billboard shall not exceed the size of the sign face (14' x 48') or the height (35') of the easternmost of the Existing Billboards, respectively. The New Billboard may have up to two (2) sign faces which are slightly angled in a "V" shape and oriented for visibility in both directions on the Florida Turnpike. The New Billboard shall comply with the representations and standards set forth in that certain specification letter provided by Clear Channel, which letter is attached hereto as Exhibit "A" and by this reference is made a part hereof (the "New Billboard Specifications Letter"). Notwithstanding the foregoing, the New Billboard may initially be constructed with one sign face utilizing LED or similar technology, or other such advanced technology as may from time to time be approved by the City ("Digital Technology") and one static sign face (which static sign face may be upgraded to Digital Technology by Clear Channel should it deem appropriate at some future date). In addition, construction of the New Billboard shall be subject to normal state sign permitting requirements and shall also be subject to applicable provisions of the Land Use Plan and the City's building code requirements. The City shall not unreasonably withhold any City required approval for the removal of the Existing Billboards or the construction of the New Billboard. 037725,000056,102860140.6 ORLA_1408129.2 4 5. Provision of Promotional Space to the Citv. The City has expressed a desire to the Property Owner and Clear Channel to be provided, at no cost or expense to the City, with space on the New Billboard to advertise and promote the City of Ocoee and community events and programs within the City (i.e., events such as the City's Annual Founder's Day). In consideration for the execution of this Agreement by the City and the City's agreement to allow the New Billboard, Clear Channel agrees to provide to the City, at no cost or expense to the City, one guaranteed cycle in a standard rotation on the electronic changeable sign face(s) of the New Billboard for five (5) blocks of time during each calendar year with each block being two (2) weeks long. In addition to these blocks of time, Clear Channel will also make a spot available in the sign rotation for the City's use during times of a State declared emergency; for example, and by way of illustration and not limitation, prior to, during or after a hurricane. 6. Ongoing Obligation to Provide Space. The provision of such advertising space to the City will continue for so long as the New Billboard (or any replacement thereot) exists and is operated on the Property. In the event that Clear Channel, or any successor company, fails to provide the City the use of the New Billboard (or any replacement thereot) as provided herein, after being provided not less than thirty (30) days notice of an alleged violation and a reasonable opportunity to cure the alleged violation, Clear Channel and Property Owner agree that the New Billboard shall be removed and no further billboards shall be allowed on the Property without the express prior written consent of the City, which consent may be granted or withheld at the City's sole discretion. 7. Provision of COpy and Artwork. With regard to the City's use of the New Billboard, Clear Channel shall provide the sign face copy and artwork as reasonably directed by the City and at no cost or expense to the City. Clear Channel and City agree to work together on a cooperative basis in accomplishing the foregoing. 8. Material Inducement. Clear Channel's agreement to reserve such advertising space at no charge to the City and to provide the sign face copy and artwork as herein provided is a material inducement to the City to enter into this Agreement and the City would not do so but for such agreement. 9. Conflict with Land Development Code. In the event of any conflict between this Agreement and the City's Land Development Code, it is agreed that the provisions of this Agreement shall control. 037725,000056,102860140.6 ORLA_1408129.2 5 to. Indemnification bv Property Owner. Property Owner shall indemnify, defend and hold the City harmless against any claims or actions which might be brought by Clear Channel with respect to the provisions of this Agreement. 11. Agreement Constitutes Relocation and Reconstruction Agreement. The parties hereto agree that the provisions contained herein constitute a "relocation and reconstruction agreement" pursuant to Section 70.20(1), Florida Statutes, and that the provisions of this Agreement constitute a consensual, contractual agreement between the City, the Property Owner and Clear Channel. 12. Binding Nature of Agreement. The provisions of this Agreement shall be binding on any entity which may from time to time own, operate, manage, lease or otherwise control the New Billboard (or any replacement thereot). The provisions of this Agreement shall be incorporated in any lease agreement or other agreement which may from time to time be entered into by Clear Channel or the Property Owner with respect to the New Billboard (or any replacement thereot). 13. Notice. Any notice delivered with respect to this Agreement shall be in writing and be deemed to be delivered (whether or not actually received) when (I) hand delivered to the other parties at the local 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 local 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. Covenant Running with the Land. This Agreement shall run with the Property and inure to and be for the benefit of the parties hereto and their respective successors and assigns and any person, firm, corporation, or entity who may become the successor in interest to the Property or any portion thereof. Provided, however, any and all rights granted to Clear Channel to construct the New Billboard are personal to Clear Channel, and not the Property Owner, and shall solely be binding on the entity which may from time to time own, operate, manage, lease or otherwise control the New Billboard (or any replacement thereot). 15. Recordation of Agreement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at the Property Owner's expense, in the Public 037725,000056,102860140.6 ORLA_1408129.2 6 Records of Orange County, Florida. The City will, from time to time upon request of the Property Owner, 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 and the Development Agreement constitute the entire agreement between the parties, and supersedes all previous discussions, understandings and agreements, with respect to the subject matter hereof; provided, however, that nothing contained herein shall be construed to amend or modify Ordinance No. 2008-019 or the Land Use Plan. 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 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. 20. Specific Performance. The parties hereto 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 any party finds it necessary to commence an action against one or both of the other parties to enforce any provision of this Agreement or because of a breach by the such party or parties of any terms hereof, the prevailing party shall be entitled to recover from the non-prevailing party or parties 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. 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 037725,000056,102860140.6 ORLA_1408129.2L 7 explain, modifY, amplifY or aid in the interpretation, construction, or meaning of the provisions of this Agreement. 24. Severabilitv. 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. 25. Effective Date. This Agreement shall first be executed by the Property Owner and Clear Channel. The Effective Date of this Agreement shall be the November 18, 2008 notwithstanding the date of actual execution by the parties hereto. REMAINDER OF P AGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES FOLLOW 037725,000056,102860140.6 ORLA_1408129.2 8 IN WITNESS WHEREOF, the parties have caused this instrument to be executed as of the day and year first above written. Signed, sealed and delivered in the presence of: PROPERTY OWNER: Print Name Dem psey Boyd Print Name 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 DEMPSEY BOYD, who LJ is personally known to me or LJ produced as identification, and that s/he 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 ,2009. 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): 037725,000056,102860140.6 ORLA_1408129.2 9 IN WITNESS WHEREOF, the parties have caused this instrument to be executed by their duly authorized officers as ofthe day and year first above written. Signed, sealed and delivered in the presence of: CLEAR CHANNEL OUTDOOR, INC., a Delaware corporation Bv: Print Name Print name: Print title: Print Name 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 (print name), in his/her capacity as (print title) of CLEAR CHANNEL OUTDOOR, INC., a Delaware corporation, and who LJ is personally known to me or LJ produced as identification, and that s/he acknowledged executing the same in the presence of two subscribing witnesses, freely and voluntarily on behalf of the corporation, for the uses and purposes therein expressed, and that s/he was duly authorized by the corporation to do so. WITNESS my hand and official seal in the County and State last aforesaid this _ day of ,2009. 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): 037725,000056,102860140.6 ORLA_1408129.2 10 Signed, sealed and delivered in the presence of: CITY: CITY OF OCOEE, FLORIDA By: Print Name S. Scott Vandergrift, Mayor Attest: Beth Eikenberry, City Clerk Print Name (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this day of , 2009. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON September 15,2009 UNDER AGENDA ITEM NO. FOLEY & LARDNER LLP By: City Attorney STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared 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 ,2009. 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) 037725,000056,102860140.6 ORLA_1408129.2 11 037725,000056,102860140.6 ORLA_1408129.2 EXHIBIT "A" NEW BILLBOARD SPECIFICATIONS LETTER 12 THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: PREPARED BY: Paul E. Rosenthal, Esq. FOLEY & LARDNER LLP III North Orange Avenue, Suite 1800 Post Office Box 2193 Orlando, FL 32802-2193 (407) 423-7656 RETURN TO: Beth Eikenberry, City Clerk CITY OF OCOEE 150 N. Lakeshore Drive Ocoee, FL 34761 (407) 656-2322 For Recording Purposes Only DEVELOPMENT AGREEMENT (Fountains at Hie:hland Park) THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the 18th day of November , 2008 by and between DEMPSEY BOYD, whose mailing address is 3275 Highway 30, Clayton, Alabama, 36016 (the "Owner" or "Developer"), and the CITY OF OCOEE, a Florida municipal corporation, whose mailing address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (the "City"). W!TNE~~ETH: WHEREAS, the Owner owns fee simple title to certain lands located in Orange County, Florida, and within the corporate limits of the City of Ocoee, Florida, said lands being more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof (the "Property"); and WHEREAS, pursuant to the petition of the Owner, on November 18, 2008 the Ocoee City Commission approved Ordinance No. 2008-019 (the "POO Ordinance"), rezoning the Property as "PUD" under the Ocoee Land Development Code; and WHEREAS, the provisions of Section 4-5A(5) of Article IV of the Ocoee Land Development Code requires that the Owner and the City enter into a development agreement incorporating all plans and conditions of approval by reference; and WHEREAS, the Owner and the City desire to execute this Agreement in order to fully comply with the provisions of the Ocoee Land Development Code; and ORLA_1130918.6 (FINAL) 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. Develooment of the Prooertv. A. The Owner hereby agrees to develop the Property in accordance with that certain PUD Land Use Plan and Preliminary Subdivision PlanIPreliminary Site Plan for the Fountains at Highland Park, prepared by Evans Engineering, Inc., date stamped as received by the City on October 2, 2008, with such additional revisions thereto, if any, as may be reflected in the minutes of the City Commission of the City ofOcoee meeting approving the same (the "Land Use Plan"). The Land Use Plan is hereby incorporated by reference as if fully set forth herein. B. The Owner hereby agrees that the Property shall be developed in accordance with and is made subject to those certain Conditions of Approval attached hereto as Exhibit "B" and by this reference made a part hereof (the "Conditions of Approval"). The Owner further agrees to comply with all of the terms and provisions of the Conditions of Approval. The Conditions of Approval attached hereto as Exhibit "B" are the same as the Conditions of Approval set forth in the Land Use Plan. C. Except as otherwise expressly set forth in this Agreement and the Land Use Plan it is agreed that (1) the Owner shall comply with the zoning and subdivision regulations of the City as set forth in the Ocoee Land Development Code, as it may from time to time be amended, and (2) all preliminary subdivision plans, final subdivision plans, and final site plans for the Property or any portion thereof shall conform to the Ocoee Land Development Code requirements in effect at the time of approval of any such plans. In the event of any conflict between the provisions of the Ocoee Land Development Code, as it may from time to time be amended, and this Agreement, it is agreed that the provisions of this Agreement shall control. Section 3. Waivers from the Ocoee Land Develooment Code. As part of the approval of the Land Use Plan, the Ownerhas been granted waivers from the requirements of the Ocoee Land Development Code, said waivers being set forth in Exhibit "C" attached hereto and by this reference made a part hereof. Section 4. Permitted Uses: Prohibited Uses. As a material inducement to the agreement of the City to rezone the Property, the Owner agrees that the Property will be developed in accordance with those uses permitted in Table 5-1 of the City of Ocoee Land Development Code as specified in the "C-3", General Commercial District, except for the following uses which are expressly prohibited on the Property: adult entertainment establishment; automotive body repair; automobile parking lot; automobile repair; automobile sales (new and used); automobile service station; automotive wrecking or salvage yards; bus terminal; equipment sales; furniture repair and upholstery; heating and air conditioning sales and service with outside storage; heating, ventilating, and/or plumbing supplies, sales and service; hospital; miniature golf ORLA_1130918.6 -2- course/driving range; mobile home and travel trailer sales; monument sales; motor vehicle wholesale; movie theater; pawn shop; pre-fabricated house sales; printing, book binding, lithograph and publishing plants; recreational vehicle park; sign painting shop; and, golf course/country club. In addition to those uses listed in Table 5-1 under C-3 zoning up to twelve thousand eight hundred (12,800) square feet of daycare shall be permitted by right on that portion of the Property designated as the Lot 17 on the Land Use Plan. Veterinary clinic / hospital uses shall require special exception approval by the City to ensure compatibility with surrounding uses. Section 5. Off-Site TransDortation Miti!!ation. A. The Owner has submitted to the City a Traffic Impact Analysis for The Fountains at Highland Park, prepared by Traffic Planning and Design, Inc., dated August, 2008 (the "Traffic Study"). The Traffic Study is premised upon the Property being developed with 12,800 square feet of daycare, 71,200 square feet of general office space, 38,000 square feet of medical office space and 5,700 square feet of retail (the "Owner's Proposed Development"). Based on the analysis set forth in the Traffic Study, upon buildout of Owner's Proposed Development the Property shall generate 2,378 new external daily trips and 354 new external PM peak hour trips. Based on this analysis, certain impacted roadway segments and intersections will not meet their adopted Level of Service by the year 2012 (the "Roadway Deficiencies"). In order to address the Roadway Deficiencies, the Owner agrees, at the Owner's expense, to implement a strategy as set forth in Section 5(B) below to accommodate or mitigate the additional traffic created by the Owner's Proposed Development. B. In order to comply with the requirements of Article IX of the City's Land Development Code entitled Concurrency and as a material inducement to the City to approve the Final Plan and thereafter issue a Final Certificate of Concurrency for the development of the Property, the Owner hereby agrees to the City the sum of TWO HUNDRED THOUSAND AND NO/lOO DOLLARS ($200,000.00) (the "Traffic Mitigation Payment"). The Traffic Mitigation Payment will be used by the City exclusively for the payment of construction costs associated with the payment of costs associated with the construction of a project known as "Maguire Road Phase 5." A proportionate share of the Traffic Mitigation Payment shall be paid by the Owner or his assigns each time application is made for a building permit for the construction of a building on the Property. Specifically, in addition to all other fees due and payable at the time a building permit is issued, Owner or his assigns shall pay a pro-rata share of the Traffic Mitigation Payment equal to One Dollar and Fifty Seven Cents ($1.57) for each square foot of such building regardless of the intended use of such building. Notwithstanding the foregoing, any unpaid balance of the Traffic Mitigation Payment shall be due and payable by the Owner to the City on the date that is three (3) years from the Effective Date and the Owner hereby grants the City the right to place a lien against any and all portions of the Property for which a pro-rata share of the Traffic Mitigation Payment has not yet been paid at that time in order to secure payment of the balance then due. C. Neither the Owner 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 Traffic Mitigation Payment set forth above and the Owner's compliance with the requirements of this section. ORLA_1130918.6 -3- D. The parties hereto recognize that the Owner's Proposed Development of the Property has been determined to meet the City's requirements for transportation concurrency based upon the transportation mitigation plan set forth above and that a more intense development of the Property than that assumed by the Traffic Study could adversely affect the transportation concurrency review undertaken by the City and subject the Property to further transportation concurrency review and require an updated traffic study. Section 6. Develooment Limitation Based on Transoortation Imoact. Notwithstanding any provision contained herein to the contrary, the Property shall not be developed in such a manner so as to generate more than a total of two thousand three hundred seventy-eight (2,378) net new trips calculated on the basis of the latest edition of the ITE Manual and the City's Transportation Impact Fee Update as referenced in Section 87-2 of the Ocoee City Code, such calculation to be made each time an application is made for the construction of a building within the Property. Section 7. Sanitary Sewer Requirements. It appears from preliminary modeling performed by the City's wastewater consultant, Reiss Engineering, Inc., that existing wastewater facilities provide adequate transmission and treatment capacity for Phase I of Owner's Proposed Development as shown on the Land Use Plan, but that there may be a deficiency in transmission capacity upon development of Phase 2 as shown on the Land Use Plan. The parties agree that, prior to Owner pulling an infrastructure permit for any portion of Phase 1, it will be necessary to field verifY the assumptions used in Reiss Engineering's modeling to determine whether it is reasonably accurate. Owner agrees to reimburse the City up to TWELVE THOUSAND AND NO/I00 DOLLARS ($12,000.00) for field verification, necessary follow-up modeling, and preparation of a memorandum as hereafter set forth. City shall direct Reiss Engineering to perform these services as soon as possible after requested to do so by Owner, but in no event later than the date Owner submits his first application to the City for an infrastructure permit for any portion of Phase I. In the event that the field verification and follow-up modeling demonstrates that improvements will need to be made as a result of Phase 2 of Owner's Proposed Development, or are needed to continue construction in Phase I, Reiss will be instructed to include in its memorandum to the City its professional opinion as to what improvements need to be made, how much additional transmission capacity such improvements will generate, and what property may be served in the future along with Owner's Phase 2 by such increased capacity. If the Reiss' memorandum concludes that there will be a deficiency in capacity the City and Owner shall promptly meet in good faith to negotiate a separate wastewater capacity enhancement agreement, or similar agreement, to resolve the deficiency so that the Owner may proceed with Phase 2 of the Owner's Proposed Development. Section 8. Billboards. A. There are two existing, multi-pole billboards currently located on the Property (the "Existing Billboards"). Pursuant to Section 70.20, Fla. Stat., the City may not require the removal of the Existing Billboards as a condition of development approval. However, Section 70.20, Fla. Stat., authorizes a municipality to enter into a "relocation and reconstruction agreement" on whatever terms are agreeable to the sign owner and the municipality. The sign owner with respect to the Existing Billboards is Clear Channel Outdoor, Inc., a Delaware ORLA_1130918.6 -4- corporation authorized to do business in the State of Florida (the "Sign Owner") and is the proper party to any such agreement. In connection with the development of the Property pursuant to the Land Use Plan, the Owner and the Sign Owner desire to remove the Existing Billboards and replace them with a single, monopole billboard with an LED (light emitting diode) or similar technology sign face or such other advanced technology as may from time to time be approved by the City (the "New Billboard"). In the absence ofthe City, Owner and Sign Owner entering into a relocation and reconstruction agreement under Section 70.20, Fla. Stat., the New Billboard would be prohibited by the City's Land Development Code. Therefore, contemporaneously with the execution of this Agreement, the City, the Owner and the Sign Owner have entered into a relocation and reconstruction agreement, the terms of which shall control with respect to the Existing Billboards and the New Billboard. Section 9. Notice. Any notice delivered with respect to this Agreement shall be in writing and be deemed to be delivered (whether or not actually received) when (I) hand delivered to the 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. Section 10. Covenant Runninl! with the Land. This Agreement shall run with the Property and inure to and be for the benefit of the parties hereto and their respective successors and assigns and any person, firm, corporation, or entity who may become the successor in interest to the Property or any portion thereof. Section 11. Recordation of Al!reement. The parties hereto agree that an executed original of this Agreement shall be recorded by the City, at the Owner's expense, in the Public Records of Orange County, Florida. The City will, from time to time upon request of the Owner or the Sign Owner, execute and deliver letters affirming the status of this Agreement. Section 12. 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 13. 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 14. Al!reement: 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 15. 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. ORLA_1130918.6 -5- Section 16. Specific Performance. Both the City and the Owner shall have the right to enforce the terms and conditions of this Agreement by an action for specific performance. Section 17. Attornevs' Fees. In the event that any party finds it necessary to commence an action against another party to enforce any provision of this Agreement or because of a breach by another party of any terms hereof, the prevailing party shall be entitled to recover from the non-prevailing 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 18. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Section 19. Captions. Captions of the Sections and Subsections of this Agreement are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction, or meaning of the provisions of this Agreement. Section 20. Severabilitv. If any sentence, phrase, paragraph, provision, or portion of this Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion hereof. Section 21. Effective Date. This Agreement shall first be executed by the Owner and submitted to the City for approval by the Ocoee City Commission. Upon approval by the Ocoee City Commission, this Agreement shall be executed by the City. The Effective Date of this Agreement shall be the November 18, 2008 notwithstanding the date of actual execution by the parties hereto. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES FOLLOW ORLA_1130918.6 -6- IN WITNESS WHEREOF, the Owner and the City have caused this instrument to be executed as of the day and year first above written. Signed, sealed and delivered in the presence of: OWNER: Print Name Dempsey Boyd Print Name 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 DEMPSEY BOYD, who LJ is personally known to me or LJ produced as identification, and that s/he acknowledged executing the same in the presence oftwo 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 , 2009. Signature of Notary Name of Notary (Typed, Printed or Stamped) Commission Number (if no! legible on seal) My Commission Expires (if no! legible on seal) ORLA_1130918.6 -7- Signed, sealed and delivered in the presence of: CITY: CITY OF OCOEE, FLORIDA By: S. Scott Vandergrift, Mayor Print Name Attest: Beth Eikenberry, City Clerk Print Name (SEAL) FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA. Approved as to form and legality this _ day of , 2009. APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON UNDER AGENDA ITEM NO. FOLEY & LARDNER LLP By: City Attorney STATE OF FLORIDA COUNTY OF ORANGE I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State and County aforesaid to take acknowledgments, personally appeared 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 , 2009. 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_1130918.6 -8- EXHIBIT "B" (Conditions of ADDroval) 1. The City of Ocoee is subject to the terms, provisions and restrictions of Florida Statutes, Chapter 163, concerning moratoria on the issuance of building permits under certain circumstances. The City has no lawful authority to exempt any private entity or itself from the application of such state legislation and nothing herein shall be construed as such an exemption. 2. This project shall be developed in two (2) phases. 3. Each phase of the project will stand on its own with respect to public services (sewer, water, stormwater management, access and other related services). 4. Except as specifically noted on this Plan, development of this property shall be consistent with the requirements of the City of Ocoee Code. 5. Nothing herein shall be construed to waive any provision of the Land Development Code except to the extent expressly set forth on a waiver table or explicitly set out on the Plan. 6. This project shall comply with, adhere to, and not deviate from or otherwise conflict with any verbal or written promise or representation made by the Owner! Applicant (or authorized agent thereof) to the City Commission at any public hearing where this project was considered for approval, where such promise or representation, whether oral or written, was relied upon by the City Commission in approving the project, could have reasonably been expected to have been relied upon by the City Commission in approving the project, or could have reasonably induced or otherwise influenced the City Commission to approve the project. For purposes of this Condition of Approval, a "promise" or "representation" shall be deemed to have been made to the City Commission by the Owner/Applicant (or authorized agent thereof) if it was expressly made to the City Commission at a public hearing where the project was considered for approval. 7. Any damage caused to any public streets as a result of the construction activities related to the project shall be promptly repaired by the Owner to the applicable governmental standards at the Owner's sole cost and expense. 8. There shall be no access from the property to any public streets except at the approved locations shown on the approved Final Subdivision Plan. 9. All building pad elevations will exceed the 1 DO-year flood elevation by a minimum of two (2) feet. 10. The Developer is to protect and prevent any disturbance, siltation, or other construction within the wetland areas inside the 1 DO-year flood elevation. Those areas are to be roped ORLA_1130918.6 -10- 1--- off during construction and silt fences installed to eliminate any possibility of disturbance in those areas during construction. II. 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 fenced 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. 12. Wetland and existing surface water impact for this property is regulated by St. Johns River Water Management District ("SJRWMD") and the Florida Department of Environmental Protection ("FDEP"). General or Individual permits are required from these agencies prior to commencement of construction. 13. All existing structures (including buildings, power lines, existing aerial and utility facilities, but exempting billboards which shall be controlled by Section 8 of the Agreement) will be removed and/or terminated prior to or during construction of the development replacing those uses. 14. Existing trees 8' or larger (other than citrus trees or 'trash' trees) located along proposed locations of buffer walls or road right-of-way lines will be preserved if at all possible, the buffer walls and roads will be designed around those trees to incorporate them into required landscape buffers and as street trees. 15. The existing grades on individual lots containing protected trees will be maintained as much as possible to preserve existing protected trees. For lots containing protected trees, there will be no grading or other construction on individual lots except as specified in the Final Subdivision Plan, until building permits are issued for those lots. 16. Removal of existing protected trees will be limited to clearing road right-of-way and retention areas as detailed in the Final Subdivision Plan. All existing protected trees on individual lots will be evaluated at the time a building permit is issued for that lot, to determine whether or not each tree needs to be removed. 17. In order to insure that as many existing trees as possible will be preserved, all road rights- of-way and retention areas will be flagged for review by the City prior to any tree removal. No clearing permits will be issued for site work or building construction until the trees to be preserved have been clearly marked with tree protection barriers. 18. No person shall undertake land clearing or the removal of any protected trees without first obtaining a permit from the Building Department. The removal of protected trees shall be minimized to the maximum extent possible and no authorization shall be granted to remove a tree if the Developer has failed to take reasonable measures to preserve the trees on site. ORLA_1130918.6 -11- 19. The Final Grading Plan will preserve existing grades on individual lots containing protected trees as much as possible. 20. All cross access, utility and/or drainage easements shall be provided prior to or at the time of platting. 21. All utilities including electrical, cable, TV, and telephone and including on-site existing overhead wires shall be placed underground. 22. A perpetual, non-exclusive access easement over all internal roadways and other paved areas is hereby granted in favor of the City of Ocoee and other applicable authorities for law enforcement, fire and other emergency services. The City may require that the owner execute an easement in recordable form with respect to the foregoing. 23. The Developer shall construct appropriate curb cuts to enable access 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, and otherwise comply with all Americans with Disabilities Act ("ADA") requirements. When sidewalks are constructed at certain comer locations, the sidewalks will be extended to the curb and the appropriate ramps will then be constructed. The Owner will be responsible for the continued maintenance of all streets and sidewalks in accordance will all ADA requirements that may now or hereinafter be applicable to the project. 24. Parking shall be provided in accordance with the City ofOcoee Land Development Code. 25. To the extent any lift stations are required on the property they will be conveyed to the City at the time of platting. 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. Lift stations shall not be deemed buildings for the purpose of assessing or collecting a pro rata share of the Traffic Mitigation Payment pursuant to Section 5 of the Agreement. 26. Each fire hydrant shall be painted OSHA yellow in color and a blue reflective marker shall be affixed to the street in the center of the lane closest to each hydrant. 27. All landscape areas will be irrigated and have automatic rain sensors. 28. Reclaimed water will be used for irrigation purposes, if available. 29. The Developer shall be responsible for installing reuse lines along with the other project infrastructure. At such time as reuse water is available to the property, the Owner of each Lot shall be responsible for connection to the reuse system lines. 30. One or more property owners associations (the "Association") will be created for maintenance and management of all common areas, unless otherwise noted. All tracts ORLA_1130918.6 -12- owned by the City shall be exempt from assessments by, or participation in, the Association unless otherwise agreed to by the City. Notwithstanding the foregoing, the City on its own may elect to participate on the Board for the Association formed and/or retain voting rights for tracts owned by the City. 31. All tracts, which are to be owned and maintained by the Association, shall be conveyed to the Association by warranty deed at the time of platting. 32. All common area improvements including entry features, walls, landscaping and sidewalks along all roads, as well as landscaping around the retention pond tracts and lift station tracts shall be completed prior to issuance of the Certificate of Completion for those corresponding phases. 33. The stormwater system, including all pipes, inlets, manholes and structures, together with Tract A (retention pond), will be owned, operated and maintained by the Association. 34. All stormwater management ponds will be unfenced with maximum 5: 1 side slopes into the pond. 35. Unless otherwise noted, a 5' utility and drainage easement will be platted along all side lot lines and a 10' utility, drainage and sidewalk easement will be platted adjacent to all street rights-of-way. Sidewalks will only be placed in this easement if necessary to run them around existing protected trees to be preserved. 36. All utilities to be placed within the 10' easement adjacent to all street rights-of-way will be placed around existing protected trees to be preserved. 37. All drainage, utility and maintenance easements shall be for the benefit of the property owners association or other designated maintenance entities. The drainage and utility easements shall be dedicated to the perpetual use of the public at the time of platting. 38. Drainage easements between lots are shown for location only. Final easement dimensions will be shown on the Final Subdivision Plan and will be sized to meet City requirements. 39. An emergency access easement to the retention ponds and over all drainage easements shown hereon shall be dedicated to the City for emergency maintenance purposes at the time of platting. The emergency access easement will not impose any obligation, burden, responsibility or liability upon the City, to enter upon any property it does not own or take any action to repair or maintain the drainage system on the property. 40. Notwithstanding the conveyance of the storm water retention ponds to the property owners association, or any provision to the contrary contained in these conditions of approval, the Developer shall remain responsible for the maintenance of the project's master stormwater management system ("SWMS"), including all master stormwater retention ponds, until such time as: (i) the SWMS for the project is constructed and appropriate certificates of completion issued by both the City and the SJRWMD, (ii) the master stormwater retention ponds intended to be conveyed to the Association have in ORLA_1130918.6 -13- fact been conveyed to the Association, (iii) the Association is designated as the maintenance entity on the records of the SJRWMD and all transfer records required by SJRWMD have been executed and accepted by SJRWMD, (iv) the City has been provided with a copy of the Developer's proposed maintenance plan with respect to the SWMS, and (v) the City has been provided with a written statement from the Association acknowledging receipt of the Developer's proposed maintenance plan with respect to the SWMS and that the Association is responsible for the maintenance of the SWMS. 41. All Declaration of Covenants and Restrictions affecting the property shall include the following provisions: A. Provision allowing the City to levy, collect, enforce assessments for maintenance of common areas if the Association fails to do so or fails to maintain assessments at a level allowing for adequate maintenance. B. Provision granting the City the right, but not the obligation, to maintain/repair the SWMS and obtain reimbursement from the Association, or from the Developer if (i) turnover of control to the members has not occurred, or (ii) if the Developer is still responsible for maintenance of the SWMS. C. Provision providing that the SWMS will be transferred to a responsible operation/maintenance entity acceptable to the City in the event of dissolution and that if dissolution occurs without such approval then the City may continue to levy and collect assessments and impose liens with respect thereto notwithstanding the dissolution of the Association. D. Provision that the Association shall at all times be in good standing with the Florida Secretary of State. E. Provision that at the time of turnover of control of the Association to the members, the Declarant shall deliver to the new Board of Directors the maintenance plan for the SWMS accompanied by an engineer's certification that the SWMS is functioning in accordance with all approved plans and permits. To the extent that any such engineer's report indicates any corrective action is required the Declarant shall be required to diligently undertake such corrective action at the Declarant's expense and to post a cash bond with the Association for the estimated costs of such corrective action. F. Provision that no property owned by the City or any other governmental entity shall be subject to assessments levied by the Association. G. Provision that any amendment to any provision affecting the City requires the consent of the City in an instrument recorded with the amendment. The Articles of Incorporation and Bylaws of the Association shall be consistent with the foregoing provisions. ORLA_1130918.6 -14- 42. The Final Subdivision Plan for the property shall include Master Architectural, Signage, Lighting and Landscape Package Plans, which will be subject to the review and approval by the City. All Lot uses shall conform to the Master Architectural, Signage, Lighting and Landscape Package Plans. 43. All cross access, utility and drainage easements shall be provided prior to or at the time of platting. 44. All legal instruments, including but not limited to articles of incorporation, bylaws, and declaration of covenants and restrictions for the Association, deeds in favor of the Association or the City, and easement documents shall be provided to the City for review and approval prior to or at the time of platting all or a portion of the property. 45. All tracts to be conveyed to the City will be conveyed by Warranty Deed at the time of platting, unless otherwise noted. Notwithstanding the conveyance of any tract to the City, until such time as any improvements contemplated for said tract are commenced, the Developer shall be responsible for the maintenance ofthe tract. 46. Pursuant to Section 4-4(G)(7) of the Ocoee Land Development Code, all subdivision signage must be consistent with the legally assigned name of the subdivision. Any subsequent change to the name of the subdivision must be approved by the City Commission. 47. A privacy wall will be constructed by the Developer along Tomyn Road in front of the Project with the design of such privacy wall being subject to approval by the City as part ofthe Final Subdivision Plan. 48. The Developer shall not remove any tress from Phase 2 (Lot 17) prior to development of Phase 2 (Lot 17). 49. A privacy wall will be constructed by the Developer on the south side of Phase 2 (Lot 17) prior to the issuance of any building permits for vertical construction on Phase 2 (Lot 17). 50. The regulation of billboards on the Property will be pursuant to and subject to the provisions of a separate relocation and reconstruction agreement between the City, the Developer and the owner of any billboard located on the Property. ORLA_1130918.6 -15-